Exhibit 10.105


 


WARRANT EXCHANGE AGREEMENT


 


THIS WARRANT PURCHASE
AGREEMENT (this “Agreement”), dated as of October 11, 2010, is entered into by and between Capital Ally Investments Limited
(the “Seller”), and Funtalk China Holdings Limited, a Cayman Islands
exempted company (the “Company”).


 


WHEREAS,
the Seller is the holder of 113,062 Class A Warrants of the Company (the “Class A
Warrants”), each to purchase one share of common stock of the Company at a
purchase price of $5.00 per share; and


 


WHEREAS,
the Seller is the holder of 1,700,000 Class B Warrants of the Company
(collectively with the Class A Warrants, the “Warrants”), each to
purchase one share of common stock of the Company at a purchase price of $5.00
per share; and


 


WHEREAS,
the Company desires to purchase from the Seller, and the Seller desires to sell
to the Company, the Warrants in accordance with the terms and conditions of
this Agreement.


 


NOW,
THEREFORE, in consideration of the mutual promises and covenants contained in
this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.             Purchase and
Sale of the Warrants.


 


(a)           Purchase of the
Warrants; Purchase Price. 
Subject to and upon the terms and conditions of this Agreement, at the
closing of the transactions contemplated by this Agreement (the “Closing”),
the Seller shall sell, transfer, convey, assign and deliver to the Company, and
the Company shall purchase, acquire and accept from the Seller, the Warrants,
free and clear of any and all covenants, conditions, restrictions, voting trust
arrangements, liens, pledges, security interests, charges, encumbrances,
options and adverse claims or rights whatsoever.  The aggregate purchase price to be paid by
the Company to the Seller for the Warrants shall be 729,157 ordinary shares of
the Company (the “Ordinary Shares”).


 


(b)           The Closing.  The Closing shall take place remotely via the
exchange of documents and signatures on the date hereof simultaneously with the
execution of this Agreement.  At the
Closing, (i) the Seller shall deliver to the Company original certificates
evidencing the Warrants duly endorsed in blank or with warrant powers duly
executed by the Seller, and (ii) the Company shall instruct its transfer
agent to issue the Ordinary Shares to the Seller
and to register such shares, in the name of the Seller, in the Company’s
register of members and deliver to the Seller the
updated register of members.  .


 


(c)           Further
Assurances.  At any time
and from time to time after the Closing, at the Company’s request and without
further consideration, the Seller shall promptly execute and deliver such
instruments of sale, transfer, conveyance, assignment and confirmation, and
take all such other action as the Company may reasonably request, more
effectively to transfer, convey and assign to the Company, and to confirm the
Company’s title to, the Warrants and to assist the Company in exercising all
rights with respect thereto and to carry out the purpose and intent of this
Agreement.


 


(d)           Post-Closing
Obligations.  The company shall deliver to the Seller the
original share certificate evidencing the Seller’s ownership of the Ordinary
Shares within ten(10) business days after the Closing.


 

















 


2.             Representations
of the Seller.  The Seller
represents and warrants to the Company as follows:


 


(a)           Authority.  The Seller is duly organized, validly
existing and in good standing under the laws of the jurisdiction under which it
is incorporated.  The Seller has the full
right, power and authority to (i) enter into this Agreement, and (ii) sell,
transfer, convey, assign and deliver the Warrants to the Company in accordance
with the terms of this Agreement.  The
execution, delivery and performance of this Agreement, and the consummation by
the Seller of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of the Seller.  This Agreement has been duly executed and
delivered by the Seller and constitutes a valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms.  This Agreement does not conflict with, or
cause a default under, any other agreement or obligation entered into by the
Seller.


 


(b)           Title.  The Seller is the sole record and beneficial
owner of the Warrants and has good and marketable title to the Warrants, free
and clear of any and all covenants, conditions, restrictions, voting trust
arrangements, liens, pledges, security interests, charges, encumbrances,
options and adverse claims or rights whatsoever.  The Seller has not assigned or otherwise
transferred to any person, firm or other entity all or any part of its interest
in, to or under the Warrants.  The
Warrants constitute all warrants of the Company owned by Seller or any of its
partners or affiliates, whether held as warrants or as units.


 


(c)           No Conflicts.  The Seller is not a party to, subject to or
bound by any agreement or any judgment, order, writ, prohibition, injunction or
decree of any court or other governmental body that would prevent (i) the
execution or delivery of this Agreement by the Seller, or (ii) the sale,
transfer, conveyance, assignment and delivery of the Warrants pursuant to the
terms hereof.  No consent, approval,
order, or authorization of, or registration, qualification, designation,
declaration or filing with, any governmental authority is required on the part
of the Seller in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.  The execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated hereby will not violate any law, regulation or order of any
governmental authority applicable to the Seller.


 


(d)           No Broker.  No broker or finder has acted for the Seller
in connection with this Agreement or the transactions contemplated hereby, and
no broker or finder is entitled to any brokerage or finder’s fee or other
commissions in respect of such transactions based upon agreements, arrangements
or understandings made by or on behalf of the Seller.


 


(e)           No Reliance.  The Seller acknowledges, represents and
agrees that: (i) the Seller has entered into this Agreement freely,
without coercion or duress, and based on its own judgment, (ii) the Seller
has had the opportunity to consult with legal counsel, financial and tax
advisors and experts of its choice, (iii) the Seller has conducted to the
Seller’s satisfaction an independent investigation of the financial condition,
results of operations, assets, liabilities, properties and projected operations
of the Company and, in making the Seller’s determination to proceed with the
transactions contemplated by this Agreement, the Seller has relied solely on
the results of its own independent investigation, (iv) the officers of the
Company have made available to the Seller any and all information that the
Seller has requested and have answered to the Seller’s satisfaction all of the
Seller’s inquiries, and (v) neither the Company nor any of its
stockholders, directors, employees, agents or representatives is making nor has
made any representation or warranty whatsoever, express or implied, other than
the representations contained in Section 3 of this Agreement, in
connection with the transactions contemplated by this Agreement.


 


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(f)            Accredited
Investor. The Seller is an “accredited investor” as such
term is defined in Regulation D under the Securities Act of 1933, as amended
(the “Securities
Act”), and has adequate information concerning the business and
financial condition of the Company to make an informed decision regarding the
sale of the Warrants and the purchase of the Ordinary Shares.   The Seller represents and warrants that the
Ordinary Shares are for the Seller’s own sole benefit and account for
investment and not with a view to, or for resale in connection with, a public
offering or distribution thereof.  The
Seller is not acquiring the Ordinary Shares as a result of or subsequent to any
general solicitation or general advertising, within the meaning of Regulation D
of the Securities Act (including, without limitation, advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising)
or any solicitation of a subscription by a person not previously known to the
Seller in connection with the investments in securities generally.


 


(g)           No Other
Representation or Warranty.  The Seller acknowledges that the Company has
not made and does not make any representation or warranty, whether express or
implied, of any kind or character except as expressly set forth in this
Agreement.


 


3.             Representations
of the Company.  The Company
represents and warrants to the Seller as follows:


 


(a)           Authority.  The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.  The Company has the full
right, power and authority to enter into this Agreement.  The execution, delivery and performance by
the Company of this Agreement, and the consummation by the Company of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of the Company. 
This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms.


 


(b)           No Conflicts.  The Company is not a party
to, subject to or bound by any agreement or any judgment, order, writ,
prohibition, injunction or decree of any court or other governmental body that
would prevent (i) the execution or delivery of this Agreement by the Company, (ii) the purchase, acquisition and
acceptance of the Warrants pursuant to the terms
hereof, or (iii) the issuance
of Ordinary Shares pursuant to the terms
hereof.  No consent, approval, order, or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required on the part of the Company in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby.  The execution, delivery and
performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby will not
violate any law, regulation or order of any governmental authority applicable
to the Company.


 


(c)           No Broker.  No broker or finder has acted for the Company
in connection with this Agreement or the transactions contemplated hereby, and
no broker or finder is entitled to any brokerage or finder’s fee or other
commissions in respect of such transactions based upon agreements, arrangements
or understandings made by or on behalf of the Company.


 


(d)           Issuance under Section 3(a)(9). The issuance
of the Ordinary Shares is exempt from registration under the Securities Act
pursuant to Section 3(a)(9) thereof. No commissions or other
remuneration has been or will be paid directly or indirectly for soliciting the
exchange of the Warrants for the Ordinary Shares.


 


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(e)           No Other
Representation or Warranty.  The
Company acknowledges that the Seller
has not made and does not make any representation or warranty, whether
express or implied, of any kind or character except as expressly set forth in
this Agreement.


 


4.             Indemnification
and Release.


 


(a)           The Seller
shall indemnify and hold the Company harmless from and against all claims,
damages, losses, liabilities, obligations, costs and expenses (including,
without limitation, settlement costs and any legal, accounting or other
expenses for investigating or defending any actions or threatened actions) in
connection with (i) any misrepresentation or breach or alleged
misrepresentation or breach of any representation or warranty made by the
Seller in this Agreement, (ii) any breach or alleged breach of any
covenant, agreement or obligation of the Seller contained in this Agreement or
any other agreement, instrument or document contemplated by this Agreement or (iii) any
claim asserted against the Company by any person acting or claiming to act as a
broker or finder on behalf of the Seller.


 


(b)           The Company
shall indemnify and hold the Seller harmless from and against all claims,
damages, losses, liabilities, obligations, costs and expenses (including,
without limitation, settlement costs and any legal, accounting or other
expenses for investigating or defending any actions or threatened actions) in
connection with (i) any misrepresentation or breach or alleged
misrepresentation or breach of any representation or warranty made by the
Company in this Agreement, (ii) any breach or alleged breach of any
covenant, agreement or obligation of the Company contained in this Agreement or
any other agreement, instrument or document contemplated by this Agreement or (iii) any
claim asserted against the Seller by any person acting or claiming to act as a
broker or finder on behalf of the Company.


 


5.             Miscellaneous.


 


(a)           Successors and
Assigns.  This Agreement, and the rights
and obligations of the Seller hereunder, may not be assigned by the Seller
without the Company’s prior written consent.


 


(b)           Survival of
Representations and Warranties.  All representations and warranties contained
herein shall survive the execution and delivery of this Agreement and the
closing of the transactions contemplated hereby.


 


(c)           Severability;
Specific Performance.  The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.  In addition to any and all
other remedies that may be available at law in the event of any breach of this
Agreement, the parties hereto shall be entitled to specific performance of the
agreements and obligations of the other party hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.


 


(d)           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the choice of law rules, or conflicts of principles of such laws.  The parties unconditionally consent to the
jurisdiction of the courts of the State of New York located in New York County
and the Federal District Court for the Southern District of New York with
respect to any action, suit or proceeding arising out of or relating to this
Agreement.  The parties unconditionally
and irrevocably waive any right to have a jury trial in any such action, suit
or other proceeding.


 


(e)           Notices.  All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or
certified mail, return receipt requested, postage prepaid or (ii) one
business day after being sent via a 


 


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reputable
nationwide overnight courier service guaranteeing next business day delivery,
in each case to the intended recipient. 
If to the Company, at 21/F, Block D The
Place Tower, No. 9 Guanghua Road, Chaoyang District, Beijing, China 100020, Attention:
Chief Financial Officer, or at such other address as may have been furnished in
writing by the Company to the Seller; or, if to the Seller at address set forth
on the signature page of this Agreement, or at such other address as may
have been furnished in writing by the Seller to the Company. Any party may give
any notice, request, consent or other communication under this Agreement using
any other means (including, without limitation, personal delivery, messenger
service, telecopy, first class mail or electronic mail), but no such notice,
request, consent or other communication shall be deemed to have been duly given
unless and until it is actually received by the party for whom it is
intended.  Any party may change the
address to which notices, requests, consents or other communications hereunder
are to be delivered by giving the other parties notice in the manner set forth
in this Section.


 


(f)            Complete
Agreement; Amendments and Waivers.  This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating
to such subject matter.  The parties
hereto may amend or modify this Agreement at any time by a written instrument
executed by the parties hereto.  No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.


 


(g)           Counterparts;
Facsimile Signatures.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which shall constitute one and the same
document.  This Agreement may be executed
by facsimile signatures.


 


(h)           Pronouns; Section Headings
and References.  Whenever
the context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa.  The section headings are for the convenience
of the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties. 
Any reference in this agreement to a particular section or subsection
shall refer to a section or subsection of this Agreement, unless specified
otherwise.


 


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IN
WITNESS WHEREOF, this Warrant Purchase Agreement has been duly executed by the
parties hereto as of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CAPITAL
  ALLY INVESTMENTS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kam Yuen

  
	
   

  	
   

  	
  Kam Yuen, Director

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  c/o
  Funtalk China Holdings Limited 21/F, Block D The Place Tower, No.9 Guanghua
  Road, Chaoyang District, Beijing, China

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  FUNTALK
  CHINA HOLDINGS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dongping Fei

  
	
   

  	
   

  	
  Dongping Fei, Director

  
					



 


[Signature
page to Warrant Exchange Agreement]