CALL OPTION AGREEMENT
This CALL
OPTION AGREEMENT (this “Agreement”) is made and
entered into as of October 14, 2009 (the “Effective Date”), between
Bingchuan Xiao, a resident of the People’s Republic of China (the “Purchaser”) and Xxx Xxxx, a
resident of United States (the “Seller”). Purchaser
and Seller are also referred to herein together as the “Parties” and individually as a
“Party.”
RECITALS
WHEREAS, China Infrastructure
Construction Corporation, a Colorado corporation (the “CCIC”) is contemplating
consummating a financing (the “Financing”) of up to $10,000,000 of its common
stock, no par value (the “Common Stock”);
WHEREAS, in order to
facilitate the Financing, CCIC has issued to the Seller a total of Seven Million
Thirty One Thousand Three Hundred Forty Four (7,031,344) shares of Common
Stock;
WHEREAS, the Seller has
determined that it is in his best interest to receive benefits from the
Purchaser’s continuous performance as a director of the Company;
WHEREAS, the Seller desires to
grant to the Purchaser an option to acquire Seven Hundred Forty Six Thousand Six
Hundred Thirty Eight (746,638) shares of Common Stock to be issued to him (for
purposes of this Agreement, including the Call Right described herein, the
“Seller’s Shares”)
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, the Parties,
in consideration of the foregoing premises and the terms, covenants and
conditions set forth below, and for other good and valuable consideration,
receipt of which is acknowledged, hereby agree as follows:
AGREEMENT
1. DEFINITIONS;
INTERPRETATION
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, $0.0001 per share of the Seller’s
Shares subject to any Call Exercise Notice.
“Conditions” means Conditions 1
through 4, as defined below, in the aggregate.
“Condition 1” means the Company
filing with the U.S. Securities and Exchange Commission (the “SEC”) its
quarterly report on Form 10-Q for the fiscal quarter ended November 30,
2009.
“Condition 2” means the Company
filing with the SEC its quarterly report on Form 10-Q for the fiscal quarter
ended February 28, 2010.
“Condition 3” means the Company
filing with the SEC its annual report on Form 10-K for the fiscal year ended May
31, 2010.
“Condition 4” means the Company
filing with the SEC its annual report on Form 10-K for the fiscal year ended May
31, 2011.
"Distributions" means any cash
proceeds arising from or in respect of, or in exchange for, or accruing to or in
consequence of the Seller’s Shares from the date hereof to the Expiration Date,
including without limitation, the Dividends.
"Dividends" means the dividends
declared by CICC and accrued in respect of the Seller’s Shares (whether or not
such dividends shall have been paid and received by the Purchaser or his
Nominee(s)).
“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.
"Nominee" means such person
nominated by the Purchaser in the Transfer Notice to be the transferee of the
Call Right or the Seller’s Shares;
“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.
“Transfer Notice” means the
notice substantially in the form set out in Appendix
B.
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. CALL
RIGHT
2.1. Call Right. The
Purchaser shall have, during the Exercise Period (as defined below), and when a
Condition is met, 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 the Purchaser or his Nominee(s), a portion of the Seller’s Shares identified
in the Call Exercise Notice (the “Call Right”). Purchaser or
Nominee(s) shall be permitted to purchase, and Seller shall be obligated to
sell, the following number of Seller’s Shares upon the attainment of the
following Conditions:
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Condition
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Number of
Seller’s Shares as to which there is a Call Right
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Condition
1
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187,377 | |||
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Condition
2
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187,377 | |||
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Condition
3
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187,377 | |||
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Condition
4
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187,375 | |||
Notwithstanding
anything in this Agreement, in case that the Seller violates any provisions of
this Agreement, the Purchaser shall receive an irrevocable Call Right to any and
all of the Seller’s Shares then held by the Seller, without any regard to the
Conditions being met. The Purchaser shall be entitled to exercise such Call
Right immediately and the Seller shall transfer to the Purchaser or his
Nominee(s) all of the Seller’s Shares immediately upon the Purchaser’s or his
Nominee(s)’s exercise of such Call Right.
2.2. Call Period. The Call
Right shall be exercisable by Purchaser, by delivering a Call Exercise Notice at
any time during the period (the “Exercise Period”) commencing
on the date hereof 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. Nominees: The
Purchaser may, at any time during the Exercise Period, at his sole discretion,
nominate one or more person(s) (each a “Nominee”) to be the transferee(s) of
whole or part of his Call Right, who shall hold and/or exercise the transferred
Call Right on behalf of the Purchaser, provided that each Nominee has executed a
lock-up agreement in the form required by CCIC prior to exercising the Call
Right.
2.4. Exercise Process. In
order to exercise the Call Right during the Exercise Period, the Purchaser or
his Nominee(s) 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 as set forth therein. The
Call Exercise Notice shall indicate the number of the Seller’s Shares as to
which the Purchaser or his Nominee(s) is/are then exercising his/her Call Right
and the aggregate Call Price. Provided the Call Exercise Notice is delivered in
accordance with Section 6.4 to the Seller on or before 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 a
Business Day or on a day 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 the Purchaser or his
Nominee(s) to purchase, and (b) on the part of the Seller to sell, the Seller’s
Shares subject to such Call Exercise Notice in accordance with the terms of this
Agreement.
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2.5. Call Price. If the
Call Right is exercised pursuant to this Section 2, as payment for the Seller’s
Shares being purchased by the Purchaser or Nominee(s) pursuant to the Call
Right, such Purchaser or Nominee(s) shall pay the aggregate Call Price to the
Seller within fifteen (15) Business Days of the Exercise Date.
2.6 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 Seller’s
Shares being purchased pursuant to such Call Exercise Notice within three (3)
Business Days of the date of a Call Exercise Notice.
2.7 Transfer Notice: In
case that the Purchaser transfers any or all of his Call Right to one or more
Nominees in accordance with Section 2.3 above, the Purchaser shall provide a
Transfer Notice to the Seller.
3. ENCUMBRANCES;
TRANSFERS, SET-OFF AND WITHHOLDINGS
3.1. Encumbrances. Upon
exercise of the Call Right, the Seller’s 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, the 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 Seller’s Shares as may be required
from time to time in order for the Purchaser to exercise his Call Right in
full.
3.3. Set-off. The
Purchaser shall be entitled to receive all of the Seller’s Shares subject to the
exercise of a Call Right, and for the purposes of this Agreement, Seller hereby
waives, as against the Purchaser or his Nominee(s), all rights of set-off or
counterclaim that would or might otherwise be available to the
Seller.
3.4 Escrow of the Seller’s
Shares.
(a) Upon
execution of this Agreement, the Seller shall deliver to Guzov Ofsink, LLC, with
an address at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, as Collateral Agent (the “Collateral Agent”), stock
certificates representing the Seller’s Shares. The stock certificates
representing the Seller’s Shares (together with duly executed stock powers in
blank) shall be held by the Collateral Agent.
(b) Upon
receipt of a Call Exercise Notice, the Collateral Agent shall promptly deliver
the Seller’s Shares being purchased pursuant to such Call Exercise Notice in
accordance with the instructions set forth therein. In the event that
the Collateral Agent shall receive notice from the Parties that the Conditions
have not been met, the Seller’s Shares shall be distributed in accordance with
their instructions.
4. REPRESENTATIONS,
WARRANTIES AND COVENANTS.
4.1. Representations and
Warranties by the Seller. The Seller represents and warrants to the
Purchaser that:
(a) Valid and Binding
Obligations. This Agreement, and all agreements and documents executed
and delivered pursuant to this Agreement, constitute valid and binding
obligations of the 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, 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 do not, and shall not, violate any provision of
any Law to which the Seller is subject or by which it is bound.
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(c) No Actions. There are
no lawsuits, actions (or to the best knowledge of the Seller, investigations),
claims or demands from any other third party, 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 (the “Actions”) as of the execution of this Agreement. The Seller
further warrants and covenants that such actions will not occur after the
execution of this Agreement.
(d) Title. The Seller
owns the Seller’s 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 Seller’s Shares free and clear of any encumbrance, except
as contemplated by this Agreement.
(e) Exercise of Rights.
Without first obtaining written instruction from the Purchaser, the Seller will
not exercise any rights in connection with the Seller’s Shares to which the
Seller is entitled as of the date of this Agreement, including but not limited
to voting rights, share transfer right, dividends rights, preemptive right or
any rights in connection with pledge, proxy, charge, lien. The Seller further
warrants and covenants that it will, unconditionally and immediately, exercise
any rights in connection with the Seller’s Shares in compliance with the
Purchaser’s written instruction upon its receipt of such written
instruction.
4.2 Representations and
Warranties by Purchaser. The Purchaser represents and warrants to the
Seller that:
(a) Valid and Binding
Obligations. This Agreement, and all agreements and documents executed
and delivered pursuant to this Agreement, constitute valid and binding
obligations of the Purchaser, enforceable against the 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.
(b) No Conflicts. Neither
the execution nor delivery of this Agreement by the Purchaser nor the
fulfillment or compliance by the 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, 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 the Purchaser or
compliance with the provisions hereof by the Purchaser do 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 the Purchaser,
investigations), claims or demands or other proceedings pending or, to the best
of the knowledge of the Purchaser, threatened against the Purchaser which, if
resolved in a manner adverse to the Purchaser, would adversely affect the right
or ability of the Purchaser to carry out his obligations set forth in this
Agreement.
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4.3
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Covenants.
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(a) Without
the prior written consent of the Purchaser, the Seller shall vote the Seller’s
Shares such that CICC shall not, (i) issue or create any new shares, equity,
registered capital, ownership interest, or equity-linked securities, or any
options or warrants that are directly convertible into, or exercisable or
exchangeable for, shares, equity, registered capital, ownership interest, or
equity-linked securities of CICC, or other similar equivalent arrangements, (ii)
alter the shareholding structure of CICC, (iii) cancel or otherwise alter the
Seller’s Shares, (iv) amend the charter or the by-laws of CICC, (v) liquidate or
wind up CICC, (vi) sell, transfer, assign, hypothecate or otherwise reduce the
value of any assets held by CICC, including but without limitation, any and all
shares in NCH and the Company or (vi) act or omit to act in such a way that
would be detrimental to the interest of the Purchaser in the Seller’s Shares,
(vii) transfer, assign, pledge, hypothecate or vest any option on his shares in
CICC to any third party. The Seller shall cause CICC, NCH and the
Company to disclose to the Purchaser true copies of all the financial, legal and
commercial documents of CICC, NCH and the Company and the resolutions of the
shareholders and the board of directors.
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(b) The
Seller agrees that the Purchaser or his Nominee(s) shall be entitled to all the
Distributions in respect of the Seller’s Shares. In the event that
any such Distributions have been received by the Seller for any reason, the
Seller shall, at the request of the Purchaser, pay an amount equivalent to the
Distributions received by him to the Purchaser or his Nominee(s) at the time of
the exercise of the Call Right by the Purchaser or his Nominee(s).
(c) The
transaction contemplated hereunder and any information exchanged between the
Parties pursuant to this Agreement will be held in complete and strict
confidence by the concerned Parties and their respective advisors, and will not
be disclosed to any person except: (i) to the Parties’ respective officers,
directors, employees, agents, representatives, advisors, counsel and consultants
that reasonably require such information and who agree to comply with the
obligation of non-disclosure pursuant to this Agreement; (ii) with the express
prior written consent of the other Party; or (iii) as may be required to comply
with any applicable law, order, regulation or ruling, or an order, request or
direction of a government agency; provided, however, that the foregoing shall
not apply to information that: (1) was known to the receiving Party prior to its
first receipt from the other Party; (2) becomes a matter of public knowledge
without the fault of the receiving Party; or (3) is lawfully received by the
Party from a third person with no restrictions on its further
dissemination.
(d) If
at any time: (i) the Seller fails to deliver the Seller’s 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 Seller by the
Purchaser; (ii) the Seller fails to comply with or perform any agreement,
covenant or obligation to be complied with or performed by the Seller 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 Seller by the
Purchaser; or (iii) the Seller (1) becomes insolvent or is unable to pay his
debts or fails or admits in writing his inability generally to pay his debts as
they become due; (2) makes a general assignment, arrangement or composition with
or for the benefit of his creditors; (3) institutes or has instituted against
him a proceeding seeking a judgment of insolvency or bankruptcy or any relief
under any Bankruptcy Law, (4) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for him or for all or substantially all his assets;
(5) has a secured party that takes possession of all or substantially all his
assets or has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially all his
assets, (6) causes or is subject to any event with respect to him which, under
the applicable Law, has an analogous effect to any of the events described in
clauses (1) through (5); or (7) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the foregoing
acts, then the Call Right shall become immediately exercisable in respect of all
of the Seller’s Shares without further regard to the occurrence of any of the
Conditions as per Section 2 of this Agreement.
5. MISCELLANEOUS.
5.1. 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.
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5.2. 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.
5.3. 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.
5.4. 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.
5.5. 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.
5.6. 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.
5.7 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.
5.8. 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.
5.9. 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 the Page Intentionally
Left Blank]
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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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Bingchuan
Xiao
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Seller:
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Xxx
Xxxx
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Acknowledged
and agreed to:
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Collateral
Agent:
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Guzov
Ofsink, LLC
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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 Seller’s Shares
pursuant to the Call Option
Agreement.
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(b)
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The
Purchaser intends to buy [ ] Seller’s Shares and
shall pay the sum of $____________ to the
Seller.
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Dated:
_______________, ______
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APPENDIX
B
Form of Transfer
Notice
To : [ ]
(the “Seller”)
From : [ ]
(the “Purchaser”)
I, the
undersigned, refer to the Call Option Agreement (the "Call Option Agreement") dated
[ ], 2008 made between Purchaser and
Seller. Terms defined in the Call Option Agreement shall have the
same meanings as used herein.
I hereby
give you notice that I will transfer to [Nominees' names] the
following portion of the Call Right, expressed in terms of the number of
Seller’s Shares represented by the portion of the Call Right transferred in
accordance with the terms and conditions of the Call Option
Agreement,.
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Nominees
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Option Shares to be
Transferred
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Dated [ ]
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Yours
faithfully
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Name:
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[Purchaser]
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