First Amendment to Note and Warrant Purchase Agreement
EXECUTION
VERSION
Exhibit
4.104
First Amendment to Note and
Warrant Purchase Agreement
First
Amendment, dated April 9, 2009 (this “Amendment”), to the
Note and Warrant Purchase Agreement, dated March 18, 2009 (the “Purchase Agreement”),
among KongZhong Corporation, an exempted limited liability company incorporated
under the laws of the Cayman Islands (the “Company”), ▇▇▇▇▇▇
▇▇▇▇, Chief Executive Officer of the Company (the “Sponsor”), and Nokia
Growth Partners II, L.P., a Delaware limited partnership (the “Investor”).
Recitals:
WHEREAS,
the Company, the Sponsor and the Investor desire to amend the Purchase
Agreement to reflect certain modified terms.
NOW, THEREFORE, in
consideration of the premises and mutual representations and agreements set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
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1.
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All
capitalized terms used and not otherwise defined in this Amendment have
the respective meanings indicated in the Purchase
Agreement.
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2.
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Section
2.2(b) of the Purchase Agreement is hereby amended and restated in its
entirety as follows:
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“Capitalization. The
authorized share capital of the Company consists of 1,000,000,000,000 Ordinary
Shares, of which, as of December 31, 2008 (the “Capitalization
Date”), 1,443,156,120 Ordinary Shares were issued and outstanding (it
being understood that the number of 1,443,156,120 includes
(i) 8,923,600 Ordinary Shares which the Company had agreed to
repurchase on or before December 31, 2008 pursuant to its share repurchase
program and were in the process of being cancelled and of which
such cancellation had not yet been reflected in the Register of
Members of the Company as of December 31, 2008, and
(ii) 13,321,960 Ordinary Shares held by Citi (Nominees) Limited as of
December 31, 2008 for future exercise of stock options and
vesting of restricted share units under the Company’s equity incentive
plans). The issued and outstanding Ordinary Shares have been duly
authorized and are validly issued as fully paid and non-assessable (meaning that
no further sums are payable to the Company on such shares), and are not subject
to any preemptive rights under Cayman Islands law or the Memorandum and Articles
of Association of the Company.”
3. This
Amendment shall become effective as of the date hereof.
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4.
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This
Amendment shall not constitute an amendment or waiver of any other
provision of the Purchase Agreement not expressly referred to
herein. Except as expressly amended hereby, the provisions of
the Purchase Agreement are and shall remain in full force an
effect.
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5.
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The
provisions of Article V (Miscellaneous) of the Purchase Agreement shall
apply mutatis
mutandis to this Amendment.
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*
*
*
In Witness
Whereof, this Amendment has been duly executed and delivered by the duly
authorized officers of the parties hereto as of the date first herein above
written.
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KONGZHONG
CORPORATION
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇▇
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Title: CEO
of the Company
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▇▇▇▇▇▇
▇▇▇▇
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇▇
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Title: CEO
of the Company
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NOKIA
GROWTH PARTNERS II, L.P.
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| By: |
N.G.
Partners II, L.L.C.
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Managing
Member
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