Annual Report of a Foreign Private Issuer — Form 20-F Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 20-F Annual Report of a Foreign Private Issuer HTML 1.40M
2: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, HTML 67K Liquidation or Succession
3: EX-4.50 Instrument Defining the Rights of Security Holders HTML 12K
4: EX-4.51 Instrument Defining the Rights of Security Holders HTML 13K
5: EX-4.52 Instrument Defining the Rights of Security Holders HTML 7K
6: EX-4.53 Instrument Defining the Rights of Security Holders HTML 8K
7: EX-4.54 Instrument Defining the Rights of Security Holders HTML 110K
8: EX-4.55 Instrument Defining the Rights of Security Holders HTML 56K
9: EX-4.56 Instrument Defining the Rights of Security Holders HTML 71K
10: EX-4.57 Instrument Defining the Rights of Security Holders HTML 199K
11: EX-8.1 Opinion re: Tax Matters HTML 10K
12: EX-11.1 Statement re: Computation of Earnings Per Share HTML 27K
13: EX-12.1 Statement re: Computation of Ratios HTML 19K
14: EX-12.2 Statement re: Computation of Ratios HTML 19K
15: EX-13.1 Annual or Quarterly Report to Security Holders HTML 13K
EX-2.6 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS NOTE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT . NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
THIS
NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR U.S. FEDERAL
INCOME TAX PURPOSES. FOR INFORMATION CONCERNING THE ISSUE PRICE, THE
AMOUNT OF OID, AND THE YIELD TO MATURITY, PLEASE CONTACT COLIN SUNG, CHIEF
FINANCIAL OFFICER OF THE COMPANY, AT (+86 21 6447 1582) WHO WILL PROMPTLY MAKE
THIS INFORMATION AVAILABLE UPON REQUEST.
Purchase
Price: $_____________
Issue
Date: May ___, 2008
Prepaid
Interest: $____________
Principal
Amount: $____________
SECURED CONVERTIBLE
NOTE
FOR VALUE RECEIVED, CHINA CABLECOM
HOLDINGS, LTD., a British Virgin Islands company (hereinafter called
“Borrower”), hereby promises to pay to __________________________,
____________________________________________________________ (the “Holder”),
without demand, the sum of _________________________________ Dollars
($________), with simple and unpaid interest thereon, on May ___, 2011 (the
“Maturity Date”), if not paid sooner.
This Note
has been entered into pursuant to the terms of a subscription agreement between
the Borrower, the Holder and certain other holders (the “Other Holders”) of
convertible promissory notes (the “Other Notes”), dated of even date herewith
(the “Subscription Agreement”). Unless otherwise separately defined
herein, all capitalized terms used in this Note shall have the same meaning as
is set forth in the Subscription Agreement. The following terms shall
apply to this Note:
ARTICLE
I
GENERAL
PROVISIONS
1.1 Interest
Rate. Interest payable on this Note shall accrue at the
annual rate of nine and ninety-nine hundredths percent (9.99%) and will be
payable on the Maturity Date. Interest until the Maturity Date shall
be prepaid and become a non-refundable component of the Principal Amount
regardless of the date such interest is actually paid. Interest will
be payable in cash or at the election of the Holder, by the Borrower’s delivery
of Ordinary Shares valued at the Conversion Price in effect on the Conversion
Date as defined in Section 2.1.
1.2 Default Interest
Rate. After the Maturity Date, accelerated or otherwise, and
during the pendency of an Event of Default (as defined in Article III) a default
interest rate of fifteen percent (15%) per annum shall apply to the amounts owed
hereunder.
1.3. Conversion
Privileges. The conversion rights of the Holder as set forth
in Article II of this Note shall remain in full force and effect immediately
from the date hereof and until the Note is paid in full regardless of the
occurrence of an Event of Default. The principal amount of the Note
and the remaining accrued but unpaid interest shall be payable in full on the
Maturity Date, unless previously paid or converted into Ordinary Shares in
accordance with Article II hereof.
ARTICLE
II
CONVERSION
RIGHTS
The
Holder shall have the right to convert the entire Principal Amount under this
Note and the accrued but unpaid interest thereon into shares of the Borrower’s
Ordinary Shares, $.0005 par value per share, as set forth below.
2.1. Voluntary Conversion into
the Borrower’s Ordinary Shares.
(a) Except
as described in Section 3.2, the Holder shall have the right from and after the
Issue Date of the issuance of this Note and then at any time until this Note is
fully paid, to convert any outstanding and unpaid principal portion of this Note
and accrued interest, at the election of the Holder (the date of giving of such
notice of conversion being a “Conversion Date”) into fully paid and
nonassessable Ordinary Shares as such shares exists on the date of issuance of
this Note, or any shares of capital stock of Borrower into which such Ordinary
Shares shall hereafter be changed or reclassified, at the conversion price as
defined in Section 2.1(b) hereof (the “Conversion Price”), determined as
provided herein. Upon delivery to the Borrower of a completed Notice
of Conversion, a form of which is annexed hereto as Exhibit A, Borrower shall
issue and deliver to the Holder within three (3) business days after the
Conversion Date (such third day being the “Delivery Date”) that number of
Ordinary Shares for the portion of the Note converted in accordance with the
foregoing. The number of Ordinary Shares to be issued upon each
conversion of this Note shall be determined by dividing that portion of the
principal of the Note (and any interest) to be converted, by the Conversion
Price.
(b) Subject
to adjustment as provided for in Section 2.1(c) hereof, the Conversion Price per
Ordinary Shares shall be $9.50 (“Conversion Price”).
(c) The
Conversion Price and the number and kind of shares or other securities to be
issued upon conversion of this Note, shall be subject to adjustment from time to
time upon the happening of certain events while this conversion right remains
outstanding, as follows:
A. Merger, Sale of Assets,
etc. If the Borrower at any time shall consolidate with or
merge into or sell or convey all or substantially all its assets to any other
corporation or entity, this Note, as to the unpaid Principal Amount thereof and
accrued interest thereon, shall thereafter be deemed to evidence the right to
purchase such number and kind of shares or other securities and property as
would have been issuable or distributable on account of such consolidation,
merger, sale or conveyance, upon or with respect to the securities subject to
the conversion or purchase right immediately prior to such consolidation,
merger, sale or conveyance. The foregoing provision shall similarly
apply to successive transactions of a similar nature by any such successor or
purchaser. Without limiting the generality of the foregoing, the
anti-dilution provisions of this Section shall apply to such securities of such
successor or purchaser or surviving entity of the surviving corporation after
any such consolidation, merger, sale or conveyance. None of the above
described transactions will be undertaken by Borrower if Borrower would not be
able to comply with its obligations under this Section 2.1(c)A.
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B. Reclassification,
etc. If the Borrower at any time shall, by reclassification or
otherwise, change the Ordinary Shares into the same or a different number of
securities of any class or classes of the Borrower’s capital stock that may be
issued or outstanding, this Note, as to the unpaid Principal Amount thereof and
accrued interest thereon, shall thereafter be deemed to evidence the right to
purchase an adjusted number of such securities and kind of securities as would
have been issuable as the result of such change with respect to the Ordinary
Shares subject to the conversion of this Note immediately prior to such
reclassification or other change.
C. Stock Splits, Combinations
and Dividends. If the Ordinary Shares are subdivided or
combined into a greater or smaller number of Ordinary Shares, or if a dividend
is paid on the Ordinary Shares in Ordinary Shares, the Conversion Price shall be
proportionately reduced in case of subdivision of shares or stock dividend or
proportionately increased in the case of combination of shares, in each such
case by the ratio which the total number of Ordinary Shares outstanding
immediately after such event bears to the total number of Ordinary Shares
outstanding immediately prior to such event.
D. Share
Issuance. So long as this Note is outstanding, if the
Borrower shall issue or agree to issue any Ordinary Shares other than with
respect to any Excepted Issuances for a consideration less than the Conversion
Price in effect at the time of such issue, then, and thereafter successively
upon each such issue, the Conversion Price shall be reduced to such other lower
issue price. For purposes of this adjustment, the issuance of any
security carrying the right to convert such security into Ordinary Shares or of
any warrant, right or option to purchase Ordinary Shares shall result in an
adjustment to the Conversion Price upon the issuance of the above-described
security and again upon the issuance of Ordinary Shares upon exercise of such
conversion or purchase rights if such issuance is at a price lower than the then
applicable Conversion Price. The reduction of the Conversion Price
described in this paragraph is in addition to other rights of the Holder
described in this Note and the Subscription Agreement.
(d) Whenever
the Conversion Price is adjusted pursuant to Section 2.1(c) above, the Borrower
shall promptly provide notice to the Holder setting forth the Conversion Price
after such adjustment and setting forth a statement of the facts requiring such
adjustment.
(e) The
Borrower will reserve from its authorized and unissued Ordinary Shares, the
number of Ordinary Shares during the time periods and in the amounts described
in the Subscription Agreement. The Borrower represents that upon
issuance, such Ordinary Shares will be duly and validly issued, fully paid and
non-assessable. The Borrower agrees that its issuance of this Note
shall constitute full authority to its officers, agents, and transfer agents who
are charged with the duty of executing and issuing stock certificates to execute
and issue the necessary certificates for Ordinary Shares upon the conversion of
this Note.
2.2 No Fractional
Shares. No fractional shares of Ordinary Shares shall be
issued upon conversion of this Note, but an adjustment in cash will be made, in
respect of any fraction of a share (which will be valued based on the Conversion
Price) which would otherwise be issuable upon the surrender of this Note for
conversion and a check in the amount of the value of such fractional share shall
promptly be delivered to the Holder.
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2.3 Issuance of Replacement
Note. Upon any partial conversion of this Note, a replacement
Note containing the same date and provisions of this Note shall, at the written
request of the Holder, be issued by the Borrower to the Holder for the
outstanding Principal Amount of this Note and accrued interest which shall not
have been converted or paid, provided Holder has surrendered an original Note to
the Borrower. In the event that the Holder elects not to surrender a Note for
reissuance upon partial payment or conversion, the Holder hereby indemnifies the
Borrower against any and all loss or damage attributable to a third-party claim
in an amount in excess of the actual amount then due under the Note, and the
Borrower is hereby expressly authorized to offset any such amounts mutually
agreed upon by Borrower and Holder or pursuant to a judgment in Borrower’s favor
against amounts then due under the Note.
2.4 Maximum
Conversion. The Holder shall not be entitled to convert on a
Conversion Date that amount of the Note in connection with that number of
Ordinary Shares which would be in excess of the sum of (i) the number of
Ordinary Shares beneficially owned by the Holder and its affiliates on a
Conversion Date, and (ii) the number of Ordinary Shares issuable upon the
conversion of the Note with respect to which the determination of this provision
is being made on a Conversion Date, which would result in beneficial ownership
by the Holder and its affiliates of more than 4.99% of the issued and
outstanding Ordinary Shares of the Borrower on such Conversion
Date. For the purposes of the provision to the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3
thereunder. Subject to the foregoing, the Holder shall not be limited
to aggregate conversions of only 4.99% and aggregate conversion by the Holder
may exceed 4.99%. The Holder shall have the authority and obligation
to determine whether the restriction contained in this Section 2.4 will limit
any conversion hereunder and to the extent that the Holder determines that the
limitation contained in this Section applies, the determination of the amount of
the Note which is convertible shall be the responsibility and obligation of the
Holder. The Holder may increase the permitted beneficial ownership
amount up to 9.99% upon and effective after 61 days prior written notice to the
Borrower. The Holder may allocate which of the equity of the Borrower
deemed beneficially owned by the Holder shall be included in the 4.99% amount
described above and which shall be allocated to the excess above
4.99%.
ARTICLE
III
REDEMPTION
3.1. Optional
Redemption. Provided an Event of Default or an event which
with the passage of time or the giving of notice would become an Event of
Default is not pending, then the Borrower will have the option of prepaying the
unpaid and unconverted Principal Amount then outstanding under this Note and the
Other Notes ("Optional Redemption"), in whole or in part in increments of not
less than $2,000,000, or the entire outstanding balance if less than $2,000,000,
in the aggregate on this Note and the Other Notes, by paying to the Holder a sum
of money equal to the Redemption Amount described below. Borrower’s
election to exercise its right to prepay must be by notice in writing (“Notice
of Redemption”). Until and including the first anniversary of the
Issue Date, the Redemption Amount shall equal 78.75% of the outstanding
Principal Amount being redeemed. After the first anniversary of the
Issue Date, the Redemption Amount shall equal 100% of the Purchase Price being
redeemed and imputed interest on the Purchase Price being redeemed calculated in
the monthly amount of $[REQUIRES COMPLETION]. [NOTE: Pro Rata portion of
$382,291.67] based on months of thirty days, payable in proportion to the
amount of Purchase Price outstanding from the Issue Date until the actual
Redemption Payment Date upon which such amount is being paid, compared to the
initial amount of Purchase Price set forth on the first page of this
Note. The Notice of Redemption shall specify the date for such
Optional Redemption (the "Redemption Payment Date"), which date shall be five
(5) business days after the date of the Notice of Redemption (the "Redemption
Period"). A Notice of Redemption shall not be effective with respect to any
portion of the principal amount under this Note for which the Holder has a
pending election to convert or for which a Conversion Notice is given prior to
the Redemption Payment Date. On the Redemption Payment Date, the
Redemption Amount, less any portion of the Redemption Amount against which the
Holder has previously exercised its rights pursuant to Section 2.1, shall be
paid in good funds to the Holder. In the event the Borrower fails to pay the
Redemption Amount on the Redemption Payment Date as set forth herein, then (i)
at the Holder’s election, such Notice of Redemption will be null and void, (ii)
Holder may enforce the Notice of Redemption, (iii) Borrower will not have the
right to deliver another Notice of Redemption, and (iv) Borrower’s failure may
be deemed by Holder to be a non-curable Event of Default. A Notice of
Redemption may be cancelled at the option of the Holder, if at any time during
the Redemption Period an Event of Default, or an event which with the passage of
time or giving of notice would become an Event of Default (whether or not such
Event of Default has been cured), occurs. Notices of Redemption must
be given to the Holder and all Other Holders with respect to all amounts owed by
Borrower to Holder and Other Holders in proportion to the Principal Amounts
outstanding on the date Notice of Redemption is given.
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3.2 Mandatory
Redemption. In the event the closing price of the
Ordinary Shares as reported by Bloomberg L.P. for the Principal Market is $8.50
or higher and the Borrower is on such date permitted to exercise its rights to
give Holder a Notice of Redemption, then the Holder may not exercise its
conversion rights described in Section 3.2 for the following thirty trading
days. In the event that the Borrower may exercise its right to call
the 9,433,334 Warrants described in the April Registration (“Callable
Warrants”), Borrower agrees that within three business days after request by the
Lead Investor it will call the Callable Warrants. Provided
that contemporaneously with the giving of a call notice with or without the
request of the Lead Investor, the Borrower delivers to the Holder and Holders of
Other Notes, Notices of Redemption (as described in Section 3.1 above) with
respect to an aggregate Redemption Amount equal to the reasonably anticipated
aggregate net proceeds to the Borrower from the exercise of the Callable
Warrants, then the conversion restriction described in the previous sentence
will be extended through forty days after the Notice of Redemption is given to
the Holder. In such case, the Redemption Payment Date will be not
later than ten business days after each date by which Borrower receives net
proceeds from the exercise of Callable Warrants of not less than $2,000,000, or
less than $2,000,000 in connection with net proceeds received by Borrower as of
the last day such Callable Warrants exercise proceeds are required to be paid to
Borrower. Additionally, net proceeds received from the exercise of
Callable Warrants which are exercised by the holders thereof without having been
called by the Borrower will be paid to the Holder and Other Holders in the same
manner and time as if such Callable Warrants exercise proceeds were received by
the Borrower after being called by the Borrower. Borrower agrees that
100% of Callable Warrants exercise net proceeds received by the Borrower until
the first anniversary of the Issue Date of this Note must be employed by the
borrower to pay the Redemption Amount. Not less than two-thirds of
Callable Warrant exercise net proceeds received by the Borrower after the first
anniversary of the Issue Date of this Note must be employed by the Borrower to
pay the Redemption Amount. The only deductions that may be made by
the Borrower from gross Callable Warrants exercise proceeds to determine
Callable Warrants exercise net proceeds are described in certain Warrant
Exercise Proceeds Award Agreements between the borrower and each of James S.
Cassano, Kerry Propper, Jonathan Kalman, and Clive Ng (as in existence on the
date hereof or as they may be renewed or replaced on substantially similar
terms). The conversion restriction described above will be extended
thirty days after each date the Borrower distributes to the Holder and other
Holders aggregate Redemption Amounts of not less than $2,000,000.
ARTICLE
IV
EVENT
OF DEFAULT
The
occurrence of any of the following events of default (“Event of Default”) shall,
at the option of the Holder hereof, make all sums of principal and accrued
interest then remaining unpaid hereon and all other amounts payable hereunder
immediately due and payable, upon demand, without presentment or grace period,
all of which hereby are expressly waived, except as set forth
below:
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4.1 Failure to Pay Principal or
Interest. The Borrower fails to pay any principal, interest or
other sum due under this Note when due and such default continues for a period
of 15 business days in the case of interest or other sum due.
4.2 Breach of
Covenant. The Borrower breaches any material covenant or other
material term or condition of the Subscription Agreement, this Note or any other
Transaction Document in any material respect and such breach, if subject to
cure, continues for a period of fifteen (15) business days after written notice
to the Borrower from the Holder.
4.3 Breach of Representations
and Warranties. Any material representation or warranty of the
Borrower made herein, in any Transaction Document, or in any agreement,
statement or certificate given in writing pursuant hereto or in connection
herewith or therewith shall be false or misleading in any material respect as of
the date made and as of the Closing Date.
4.4 Liquidation. Any
dissolution, liquidation or winding up of Borrower, Subsidiary or any
substantial portion of their business.
4.5 Cessation of
Operations. Any cessation of operations by Borrower or
Borrower is otherwise generally unable to pay its debts as such debts become
due.
4.6 Maintenance of
Assets. The failure by Borrower to maintain any material
Intellectual Property Rights, personal, real property or other assets which are
necessary to conduct its business (whether now or in the future).
4.7 Merger. The
merger, consolidation or reorganization of Borrower with or into another
corporation or person or entity (other than with or into a wholly-owned
subsidiary), or the sale of capital stock of Borrower by Borrower or the holders
thereof, in any case under circumstances in which the holders of a majority of
the voting power of the outstanding capital stock of Borrower immediately prior
to such transaction shall own less than a majority in voting power of the
outstanding capital stock of Borrower or the surviving or resulting corporation
or other entity, as the case may be, immediately following such
transaction.
4.8 Receiver or
Trustee. The Borrower shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed without the consent of the
Borrower.
4.9 Judgments. Any
money judgment, writ or similar final process shall be entered or filed against
Borrower or any subsidiary of Borrower or any of their property or other assets
for more than $1,000,000, and shall remain unvacated, unbonded, unappealed,
unsatisfied, or unstayed for a period of ninety (90) days.
4.10 Bankruptcy. Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Borrower.
4.11 Delisting. Failure
of the Ordinary Shares to be listed for trading or quotation on a Principal
Market.
4.12 Non-Payment. A
default by the Borrower under any one or more obligations in an aggregate
monetary amount in excess of $1,000,000 after the due date and any applicable
cure period.
6
4.13 Stop
Trade. An SEC or judicial stop trade order or Principal Market
trading suspension with respect to the Ordinary Shares that lasts for ten (10)
or more consecutive trading days.
4.14 Failure to Deliver Ordinary
Shares or Replacement Note. The Borrower’s failure to deliver
Ordinary Shares to the Holder pursuant to and in the form required by this Note
and Sections 7 and 11 of the Subscription Agreement, or, if required, a
replacement Convertible Note more than ten (10) business days after the required
delivery date of such Ordinary Shares or replacement Convertible
Note.
4.15 Reservation
Default. The failure by the Borrower to have reserved
for issuance upon conversion of the Note the number of shares of Ordinary Shares
as required in the Subscription Agreement and this Note.
4.16 Cross
Default. A default by the Borrower of a material term,
covenant, warranty or undertaking of any other agreement to which the Borrower
and Holder are parties, or the occurrence of a material event of default under
any such other agreement which is not cured after any required notice and/or
cure period.
4.17 Financial Statement
Restatement. The restatement of any financial statements
filed by the Borrower with the U.S. Securities and Exchange Commission for any
date or period commencing two years prior to the Issue Date of this Note, if the
result of such restatement would, by comparison to the unrestated financial
statements, have constituted a Material Adverse Effect.
4.18 Other Note
Default. The occurrence of any Event of Default under any
Other Note.
ARTICLE
V
SECURITY
INTEREST
5.
Security
Interest/Waiver of Automatic Stay. This Note is secured
by a security interest granted to the Collateral Agent for the benefit of the
Holder pursuant to a Security Agreement. The Borrower acknowledges
and agrees that should a proceeding under any bankruptcy or insolvency law be
commenced by or against the Borrower, or if any of the Collateral (as defined in
the Security Agreement) should become the subject of any bankruptcy or
insolvency proceeding, then the Holder should be entitled to, among other relief
to which the Holder may be entitled under the Transaction Documents and any
other agreement to which the Borrower and Holder are parties (collectively,
"Loan Documents") and/or applicable law, an order from the court granting
immediate relief from the automatic stay pursuant to 11 U.S.C. Section 362 to
permit the Holder to exercise all of its rights and remedies pursuant to the
Loan Documents and/or applicable law. THE BORROWER EXPRESSLY WAIVES THE BENEFIT
OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE,
THE BORROWER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER 11 U.S.C. SECTION
362 NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE
(INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE HOLDER TO ENFORCE ANY
OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE
LAW. The Borrower hereby consents to any motion for relief from stay
that may be filed by the Holder in any bankruptcy or insolvency proceeding
initiated by or against the Borrower and, further, agrees not to file any
opposition to any motion for relief from stay filed by the
Holder. The Borrower represents, acknowledges and agrees that this
provision is a specific and material aspect of the Loan Documents, and that the
Holder would not agree to the terms of the Loan Documents if this waiver were
not a part of this Note. The Borrower further represents, acknowledges and
agrees that this waiver is knowingly, intelligently and voluntarily made, that
neither the Holder nor any person acting on behalf of the Holder has made any
representations to induce this waiver, that the Borrower has been represented
(or has had the opportunity to he represented) in the signing of this Note and
the Loan Documents and in the making of this waiver by independent legal counsel
selected by the Borrower and that the Borrower has discussed this waiver with
counsel.
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ARTICLE
VI
MISCELLANEOUS
6.1 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder hereof
in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
6.2 Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (a) personally served, (b) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (c)
delivered by a reputable overnight courier service with charges prepaid, or (d)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the transmitting
facsimile machine, at the address or number designated below (if delivered on a
business day during normal business hours, or the first business day following
such delivery (if delivered other than on a business day during normal business
hours), (ii) on the first business day following the date deposited with an
overnight courier service with charges prepaid, or (iii) on the fifth business
day following the date of mailing pursuant to subpart (b) above, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be: (i) if to the Company, to: China Cablecom
Holdings, Ltd., Unit 3309-3310, 1 Grand Gateway, 1 Hongqiao, Shanghai, 200030,
PRC, Attn: Colin Sung, President and CFO, fax number: (917) 591-8839 with a copy
by fax only to: Loeb & Loeb LLP, 345 Park Avenue, New York, NY10154, Attn:
Mitchell S. Nussbaum, Esq., fax number: (212) 407-4990, and (ii) if to the
Subscriber, to: the one or more addresses and fax numbers indicated on the
signature pages hereto, with an additional copy by fax only to: Grushko &
Mittman, P.C., 551 Fifth Avenue, Suite 1601, New York, New York10176, fax
number: (212) 697-3575.
6.3 Amendment
Provision. The term “Note” and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or
supplemented.
6.4 Assignability. This
Note shall be binding upon the Borrower and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and
assigns. The Borrower may not assign its obligations under this
Note.
6.5 Cost of
Collection. If default is made in the payment of this Note,
Borrower shall pay the Holder hereof reasonable costs of collection, including
reasonable attorneys’ fees.
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6.6 Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York. Any action brought
by either party against the other concerning the transactions contemplated by
this Agreement shall be brought only in the civil or state courts of New York or
in the federal courts located in the State of New York. Both parties
and the individual signing this Agreement on behalf of the Borrower agree to
submit to the jurisdiction of such courts. The prevailing party shall
be entitled to recover from the other party its reasonable attorney’s fees and
costs. In the event that any provision of this Note is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or unenforceability of any other
provision of this Note. Nothing contained herein shall be
deemed or operate to preclude the Holder from bringing suit or taking other
legal action against the Borrower in any other jurisdiction to collect on the
Borrower’s obligations to Holder, to realize on any collateral or any other
security for such obligations, or to enforce a judgment or other decision in
favor of the Holder. This Note shall be deemed an
unconditional obligation of Borrower for the payment of money and, without
limitation to any other remedies of Holder, may be enforced against Borrower by
summary proceeding pursuant to New York Civil Procedure Law and Rules Section
3213 or any similar rule or statute in the jurisdiction where enforcement is
sought. For purposes of such rule or statute, any other document or
agreement to which Holder and Borrower are parties or which Borrower delivered
to Holder, which may be convenient or necessary to determine Holder’s rights
hereunder or Borrower’s obligations to Holder are deemed a part of this Note,
whether or not such other document or agreement was delivered together herewith
or was executed apart from this Note.
6.7 Maximum
Payments. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum rate permitted by applicable law. In the event
that the rate of interest required to be paid or other charges hereunder exceed
the maximum rate permitted by applicable law, any payments in excess of such
maximum rate shall be credited against amounts owed by the Borrower to the
Holder and thus refunded to the Borrower.
6.8 Shareholder
Status. The Holder shall not have rights as a shareholder of
the Borrower with respect to unconverted portions of this
Note. However, the Holder will have all the rights of a shareholder
of the Borrower with respect to the Ordinary Shares to be received by Holder
after delivery by the Holder of a Conversion Notice to the
Borrower.
6.9 Application of
Payments. Cash payments, Mandatory Conversion Amounts and
Redemption Amounts shall be applied at the Holder’s election first to
outstanding liquidated damages and Holder’s reimbursable expenses, then to
interest and lastly to Principal Amount.
6.10 Construction. Each
party acknowledges that its legal counsel participated in the preparation of
this Note and, therefore, stipulates that the rule of construction that
ambiguities are to be resolved against the drafting party shall not be applied
in the interpretation of this Note to favor any party
against
the other.
6.11 Redemption. This
Note may not be redeemed or called without the consent of the Holder except as
described in this Note or the Subscription Agreement.
6.12 Non-Business
Days. Whenever any payment or any action to be made
shall be due on a Saturday, Sunday or a public holiday under the laws of the
State of New York, such payment may be due or action shall be required on the
next succeeding business day and, for such payment, such next succeeding day
shall be included in the calculation of the amount of accrued interest payable
on such date.
9
[THIS
SPACE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, Borrower
has caused this Note to be signed in its name by an authorized officer as of the
____ day of May, 2008.
CHINA
CABLECOM HOLDINGS, LTD.
By:
Name:
Clive Ng
Title:
Executive
Chairman
WITNESS:
11
EXHIBIT
A
NOTICE OF
CONVERSION
(To be
executed by the Registered Holder in order to convert the Note)
The
undersigned hereby elects to convert the principal amount of the Convertible
Note (the “Note”) issued by China Cablecom Holdings, Ltd. on May ___, 2008 and
the accrued but unpaid interest thereon into Ordinary Shares of China Cablecom
Holdings, Ltd. (the “Borrower”) according to the conditions set forth in such
Note, as of the date written below.
Principal
Amount Being Converted:
$____________________________________________________________________
Interest
other than Prepaid Interest being Converted:
$_______________________________________________________
Date
of Conversion:
_________________________________________________________________________________
