AMENDED AND RESTATED CALL OPTION AGREEMENT
EXHIBIT
10.11
AMENDED
AND RESTATED
This
AMENDED AND RESTATED CALL OPTION AGREEMENT (this “Agreement”) is made and
entered into as of December 17, 2009 (the “Effective Date”), between Jia
Zhi Hong and Zhao Bin, residents of the People’s Republic of China (the "Purchaser" or “Purchasers”) and Huo Xxxx Xxx,
a resident of Hong Kong Special Administration Region (the “Seller”). Purchasers
and Seller are also referred to herein together as the “Parties” and individually as a
“Party”.
RECITALS
WHEREAS, pursuant to a Reverse
Acquisition Agreement by and among ActiveWorlds Corp., a company incorporated
under the laws of the State of Delaware, whose shares trade on the OTC Bulletin
Board under the symbol AWLD (the “ActiveWorlds”), Dragon Lead
Group Limited, a British Virgin Islands company (the "Dragon Lead") and its
shareholders, among which Famous Grow Holdings Limited, a British Virgin Island
company wholly owned by the Seller is the single largest shareholder ("Famous Grow" or the “Company”), ActiveWorlds is
expected to acquire 100% of the issued and outstanding capital stock of Dragon
Lead and issue new shares to Famous Grow and other Dragon Lead shareholders (the
“Reverse Acquisition
Agreement”);
WHEREAS, Purchasers have
agreed with Seller, as an inducement to the Purchasers in continuing to provide
services to Wuhan Kingold Jewelry Company Limited by Shares (“Wuhan Kingold”) (which has
entered into a series of captive agreements (“VIE Agreement”) with Wuhan
Vogue-Show Jewelry Company Limited, a PRC company that is a wholly owned
subsidiary of Dragon Lead (the “Vogue-Show”, together the
“Group”)) and the Group,
with Jia Zhi Hong serving as chairman of Wuhan Kingold and chief
executive officer of ActiveWorlds and Zhao Bin serving as general manager of
both Wuhan Kingold and ActiveWorlds, to enter into this Agreement;
WHEREAS, Seller is the sole
holder of the Famous Grow’s issued shares (“Company Shares”), and has
determined that it is in her best interest to receive benefits from Purchasers’
performance as senior management of Wuhan Kingold and the Group and will enter
into the Reverse Acquisition Agreement based on the possibility of obtaining
such benefits;
WHEREAS, upon the closing of
the Reverse Acquisition Agreement, Famous Grow will be issued and hold
35,850,445 shares of common stock of ActiveWorlds, $0.001 par value per
share;
WHEREAS, Seller agrees to
[deposit all her Company Shares to a make good escrow agent and] grant to
Purchasers certain call rights to acquire up to 100 percent of the Company
Shares pursuant to the terms and conditions set forth herein (“Call Right”);
NOW, THEREFORE, the Parties,
in consideration of the foregoing premises and the terms, covenants and
conditions set forth below, and other good and valuable consideration, receipt
of which is acknowledged, hereby agree as follows:
AGREEMENT
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1.
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DEFINITIONS;
INTERPRETATION
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1.1. Terms Defined in this
Agreement. The following terms when used in this Agreement shall have the
following definitions:
“Bankruptcy Law” means any Law
of any jurisdiction relating to bankruptcy, insolvency, corporate
reorganization, company arrangement, civil rehabilitation, special liquidation,
moratorium, readjustment of debt, appointment of a conservator, trustee or
receiver, or similar debtor relief.
“Business Day” means any day on
which commercial banks are required to be open in the United
States.
“Call Price” means, with
respect to any exercise of the Call Right, par value or $0.001 per share of the
Company Shares subject to any Call Exercise Notice.
“Government Authority” means
any: (a) nation, principality, state, commonwealth, province, territory, county,
municipality, district or other jurisdiction of any nature; (b) federal, state,
local, municipal, foreign or other government; (c) governmental or quasi
governmental authority of any nature (including any governmental division,
subdivision, department, agency, bureau, branch, office, commission, council,
board, instrumentality, officer, official, representative, organization, unit,
body or Person and any court or other tribunal); or (d) individual, Person or
body exercising, or entitled to exercise, any executive, legislative, judicial,
administrative, regulatory, police, military or taxing authority or power of any
nature.
“Law” means any federal, state,
local, municipal, foreign or other law, statute, legislation, constitution,
principle of common law, resolution, ordinance, code, order, edict, decree,
proclamation, treaty, convention, rule, regulation, permit, ruling, directive,
pronouncement, requirement (licensing or otherwise), specification,
determination, decision, opinion or interpretation that is, has been or may in
the future be issued, enacted, adopted, passed, approved, promulgated, made,
implemented or otherwise put into effect by or under the authority of any
Government Authority.
“Person” means any individual,
firm, company, corporation, limited liability company, unincorporated
association, partnership, trust, joint venture, governmental authority or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
1.2.
Interpretation.
(a)
Certain
Terms. The words “hereof,” “herein,” “hereunder” and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The term “including” is not limited and means “including without
limitation.”
(b) Section References;
Titles and Subtitles. Unless otherwise noted, all references to Sections
herein are to Sections of this Agreement. The titles, captions and headings of
this Agreement are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
(c)
Reference to
Entities, Agreements, Statutes. Unless otherwise expressly provided
herein, (i) references to a Person include its successors and permitted
assigns, (ii) references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements and other modifications thereto or supplements thereof and
(iii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such statute or
regulation.
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2.
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CALL
RIGHT
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2.1. Call Right. Purchaser
shall have, during the Exercise Period (as defined below), the right and option
to purchase from the Seller, and upon the exercise of such right and option the
Seller shall have the obligation to sell to Purchasers, a portion of the Company
Shares identified in the Call Exercise Notice.
2.2.
Call Period.
The Call Right shall be exercisable by Purchasers, by delivering a Call Exercise
Notice at any time during the period (the “Exercise Period”) commencing
on the day that shall be 30 days subsequent to the date that the Reverse
Acquisition is closed and ending at 6:30 p.m. (New York time) on the fifth
anniversary date therefrom (such date or the earlier expiration of the Call
Right is referred to herein as the “Expiration
Date”).
2.3. Exercise Process. In
order to exercise the Call Right during the Exercise Period, the Purchasers
shall deliver to the Seller, a written notice of such exercise substantially in
the form attached hereto as Appendix A
(a “Call Exercise
Notice”) to such address or facsimile number set forth therein. The Call
Exercise Notice shall indicate the number of Company Shares as to which
Purchaser is then exercising its Call Right and the aggregate Call Price.
Provided the Call Exercise Notice is delivered in accordance with Section 6.4 to
such Seller on or prior to 6:30 p.m. (New York time) on a Business Day, the date
of exercise (the “Exercise
Date”) of the Call Right shall be the date of such delivery of such Call
Exercise Notice. In the event the Call Exercise Notice is delivered after 6:30
p.m. (New York time) on any day or on a date which is not a Business Day, the
Exercise Date shall be deemed to be the first Business Day after the date of
such delivery of such Call Exercise Notice. The delivery of a Call Exercise
Notice in accordance herewith shall constitute a binding obligation (a) on the
part of such Purchaser to purchase, and (b) on the part of the Seller to sell,
the Company Shares subject to such Call Exercise Notice in accordance with the
terms of this Agreement.
2.4. Call Price. If the
Call Right is exercised pursuant to this Section 2, as payment for the Company
Shares being purchased by the Purchasers pursuant to the Call Right, such
Purchaser shall pay the aggregate Call Price to the Seller (but no later than
fifteen (15) Business Days of the Exercise Date).
2.5 Delivery of the
Shares. Upon the receipt of a Call Exercise Notice, the Seller shall
deliver, or take all steps necessary to cause to be delivered, the Company
Shares being purchased pursuant to such Call Exercise Notice.
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3.
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ENCUMBRANCES;
TRANSFERS, SET-OFF AND WITHHOLDINGS
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3.1. Encumbrances. Upon
exercise of the Call Right, the Company Shares being purchased shall be sold,
transferred and delivered to the Purchaser free and clear of any claim, pledge,
charge, lien, preemptive rights, restrictions on transfers (except as required
by securities laws of the United States), proxies, voting agreements and any
other encumbrance whatsoever.
3.2
Transfers.
Prior to the Expiration Date, Seller shall continue to own, free and clear of
any hypothecation, pledge, mortgage or other encumbrance, except pursuant to
this Agreement and except in favor of the Collateral Agent (as defined below)
for the benefit of the Purchaser, such amount of the Company Shares as may be
required from time to time to in order for the Purchaser to exercise its Call
Right in full.
3.3. Set-off. The
Purchaser shall be absolutely entitled to receive all Company Shares subject to
the exercise of a Call Right, and for the purposes of this Agreement, Seller
hereby waives, as against the Purchaser, all rights of set-off or counterclaim
that would or might otherwise be available to the Seller.
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3.4 Escrow of Company
Shares.
(a) Upon
execution of this Agreement, Seller shall deliver to Mr. Xxxxx Xx, as Collateral
Agent (the “Collateral
Agent”), certificates representing Company Shares and its ActiveWorlds
Common Stocks. The certificates representing the Company Shares (together with
duly executed stock powers in blank) or its ActiveWorlds Common Stocks shall be
held by the Collateral Agent.
(b) Upon
receipt of a Call Exercise Notice, the Collateral Agent shall promptly deliver
the Company Shares being purchased pursuant to such Call Exercise Notice in
accordance with the instructions set forth therein and in accordance with any
other Lock-Up or Make Good Agreement in place between the Purchasers or Seller
and other third party.
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4.
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REPRESENTATIONS
AND WARRANTIES.
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4.1. Representations and
Warranties by Seller. Seller represents and warrants to Purchaser
that:
(a)
Due
Authorization. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it
have been duly authorized by all necessary action on the part of Seller. This
Agreement, and all agreements and documents executed and delivered pursuant to
this Agreement, constitute valid and binding obligations of such Seller,
enforceable against such Seller in accordance with its terms, subject to
applicable Bankruptcy Laws and other laws or equitable principles of general
application affecting the rights of creditors generally.
(b) No Conflicts. Neither
the execution or delivery of this Agreement by the Seller nor the fulfillment or
compliance by the Seller with any of the terms hereof shall, with or without the
giving of notice and/or the passage of time, (i) conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under,
(A) the organizational or charter documents of the Seller or (B) any contract or
any judgment, decree or order to which Seller is subject or by which the Seller
is bound, or (ii) require any consent, license, permit, authorization, approval
or other action by any Person or Government Authority which has not yet been
obtained or received. The execution, delivery and performance of this Agreement
by the Seller or compliance with the provisions hereof by the Seller does not,
and shall not, violate any provision of any Law to which the Seller is subject
or by which it is bound.
(c)
No Actions. There are
no lawsuits, actions (or to the best knowledge of the Seller, investigations),
claims or demands or other proceedings pending or, to the best of the knowledge
of the Seller, threatened against the Seller which, if resolved in a manner
adverse to the Seller, would adversely affect the right or ability of the Seller
to carry out its obligations set forth in this Agreement.
(d)
Title. Seller owns
the Company Shares free and clear of any claim, pledge, charge, lien, preemptive
rights, restrictions on transfers, proxies, voting agreements and any other
encumbrance whatsoever, except as contemplated by this Agreement. The Seller has
not entered into or is a party to any agreement that would cause the Seller to
not own such Company Shares free and clear of any encumbrance, except as
contemplated by this Agreement.
4.2
Representations and
Warranties by Purchaser. The Purchaser represents and warrants to the
Seller that:
(a)
Due Authorization.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary action on the part of the Purchaser. This Agreement,
and all agreements and documents executed and delivered pursuant to this
Agreement, constitute valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to applicable Bankruptcy
Laws and other laws or equitable principles of general application affecting the
rights of creditors generally.
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(b) No Conflicts. Neither
the execution or delivery of this Agreement by Purchaser nor the fulfillment or
compliance by Purchaser with any of the terms hereof shall, with or without the
giving of notice and/or the passage of time, (i) conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under,
(A) the organizational or charter documents of Purchaser or (B) any contract or
any judgment, decree or order to which Purchaser is subject or by which
Purchaser is bound, or (ii) require any consent, license, permit, authorization,
approval or other action by any Person or Government Authority which has not yet
been obtained or received. The execution, delivery and performance of this
Agreement by Purchaser or compliance with the provisions hereof by Purchaser
does not, and shall not, violate any provision of any Law to which Purchaser is
subject or by which it is bound.
(c) No Actions. There are
no lawsuits, actions (or to the best knowledge of Purchaser, investigations),
claims or demands or other proceedings pending or, to the best of the knowledge
of Purchaser, threatened against Purchaser which, if resolved in a manner
adverse to Purchaser, would adversely affect the right or ability of Purchaser
to carry out its obligations set forth in this Agreement.
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5.
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EVENTS
OF DEFAULT AND TERMINATION
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5.1 Events of Default.
The occurrence at any time with respect to a Party (the “Defaulting Party”) of any of
the following events shall constitute an event of default (an “Event of Default”) with
respect to such party:
(a) Failure to Pay or
Deliver. The failure by a Party to make, when due, any payment under this
Agreement or deliver the Company Shares in accordance with this Agreement, if
such failure is not remedied on or before the third Business Day after notice of
such failure is given to the Defaulting Party;
(b) Breach of Agreement.
The failure by a Party to comply with or perform any agreement, covenant or
obligation (other than a failure described in Section 5.1(a)) to be complied
with or performed by such Party in accordance with this Agreement if such
failure is not remedied on or before the tenth Business Day after notice of such
failure is given to the Defaulting Party; or
(c) Bankruptcy. A Party
(1) is dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is unable to pay its debts or fails or admits
in writing its inability generally to pay its debts as they become due; (3)
makes a general assignment, arrangement or composition with or for the benefit
of its creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any relief under any
Bankruptcy Law, or a petition is presented for its winding-up or liquidation,
and in the case of any such proceeding or petition instituted or presented
against it, such proceeding or petition (A) results in a judgment of insolvency
or bankruptcy or the entry of an order for relief or the making of an order for
its winding-up or liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all it assets; (7) has a secured party take
possession of all or substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or sued on or
against all or substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed or
rescinded, in each case within 30 days thereafter; (8) causes or is subject to
any event with respect to it which, under the applicable Law, has an analogous
effect to any of the events described in clauses (1) through (7); or (9) takes
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts.
5.2 Termination. If at
any time an Event of Default with respect to a Party has occurred and is
continuing, the other party may terminate this Agreement and deem the Expiration
Date to have occurred by giving written notice to the Defaulting Party
specifying the relevant Event of Default.
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6.
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MISCELLANEOUS.
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6.1. Governing Law;
Jurisdiction. This Agreement shall be construed according to, and the
rights of the Parties shall be governed by, the laws of the State of New York,
without reference to any conflict of laws principle that would cause the
application of the laws of any jurisdiction other than New York. Each Party
hereby irrevocably submits to the exclusive jurisdiction of the federal and
state courts sitting in the City of New York, for the adjudication of any
dispute hereunder or in connection herewith, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that such, suit, action or proceeding is brought in
an inconvenient forum, or that the venue of such suit, action or proceeding is
improper.
6.2. Successors and
Assigns. No Party may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other Party. The provisions
hereof shall inure to the benefit of, and be binding upon, the successors and
permitted assigns of the Parties.
6.3. Entire Agreement;
Amendment. This Agreement constitutes the full and entire understanding
and agreement between and among the Parties with regard to the subject matter
hereof. Any term of this Agreement may be amended only with the written consent
of each Party.
6.4.
Notices and Other
Communications. Any and all notices, requests, demands and other
communications required or otherwise contemplated to be made under this
Agreement shall be in writing and shall be provided by one or more of the
following means and shall be deemed to have been duly given (a) if
delivered personally, when received, (b) if transmitted by facsimile, on
the date of transmission with receipt of a transmittal confirmation, or
(c) if by an internationally recognized overnight courier service, one
Business Day after deposit with such courier service. All such notices,
requests, demands and other communications shall be addressed to such address or
facsimile number as a party may have specified to the other parties in writing
delivered in accordance with this Section 6.4.
6.5. Delays or Omissions.
No delay or omission to exercise any right, power or remedy accruing to any
Person hereunder, upon any breach or default under this Agreement, shall impair
any such right, power or remedy nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Person hereunder of any breach or default under
this Agreement, or any waiver on the part of any Person of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing and signed by the waiving or
consenting Person.
6.6.
Severability.
If any provision of this Agreement is found to be invalid or unenforceable, then
such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions
contemplated hereby on substantially the same terms as originally set forth
herein, and if no feasible interpretation would save such provision, it shall be
severed from the remainder of this Agreement, which shall remain in full force
and effect unless the severed provision is essential to the rights or benefits
intended by the Parties. In such event, the Parties shall use best efforts to
negotiate, in good faith, a substitute, valid and enforceable provision or
agreement which most nearly affects the Parties’ intent in entering into this
Agreement.
6.7 Construction. The
language used in this Agreement will be deemed to be the language chosen by the
Parties to express their mutual intent, and no rules of strict construction will
be applied against any Party.
6.8. Further Assurances.
The Parties shall perform such acts, execute and deliver such instruments and
documents and do all other such things as may be reasonably necessary to effect
the transactions contemplated hereby.
6.9.
Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing
the facsimile signature of a Party shall constitute a valid and binding
execution and delivery of this Agreement by such Party.
[remainder of page intentionally
blank]
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Signature
Page
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
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Purchaser:
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/s/ Jia Zhi
Hong
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Purchaser:
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/s/ Zhao
Bin
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Seller:
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/s/ Huo Xxxx
Xxx
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Acknowledged
and agreed to:
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Collateral
Agent:
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________________,
as Collateral Agent
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By:
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Name:
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APPENDIX
A
Form of Exercise
Notice
[Date]
[________________]
(the “Seller”)
[________________]
[________________]
Attention:
[_______]
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Re:
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Call
Option Agreement dated ____________ (the
“Call Option
Agreement”) between ________________ (“Purchaser”) and
________________ (“Seller”).
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Dear
Sir:
In
accordance with Section 2.3 of the Call Option Agreement, Purchaser hereby
provides this notice of exercise of the Call Right in the manner specified
below:
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(a)
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The
Purchaser hereby exercises its Call Rights with respect to Company Shares
pursuant to the Call Option
Agreement.
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(b)
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The
Purchaser shall pay the sum of $____________ to the
Seller.
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Dated:
_______________, ______
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