OPTION AGREEMENT FOR PURCHASE OF REAL PROPERTY AMONG HONESTY GROUP HOLDINGS LIMITED AND BURNETTE OR FEBRUARY 9, 2010
Exhibit
4.8 to Form 00-X
Xxxxxxxxx
Asia Acquisition Corp.
FOR
PURCHASE OF REAL PROPERTY
AMONG
HONESTY
GROUP HOLDINGS LIMITED
AND
XXXXXXXX
OR
FEBRUARY
9, 2010
OPTION
AGREEMENT FOR PURCHASE OF REAL PROPERTY
This
OPTION AGREEMENT (this “Agreement”) is entered into in Jinjiang, China as of
February 9, 2010 by and among:
Honesty
Group Holdings Limited (hereinafter referred to as “Seller”‘) and
Xx.
Xxxxxxxx Or, whose Hong Kong Identity Card No. is D492593A (hereinafter referred
to as “Purchaser”):
WHEREAS:
(A)
Seller’s PRC Subsidiaries are the legal owners of certain real property being,
lying and situated in the Jinjiang City, Fujian Province of PRC, such real
property having the street address of Houlin Community, Luoshan Street, Jinjiang
City (the “Transferred Lane) with details described in below table:
|
Land
Use Right Certificate No.
|
Owner
|
Tenure
|
Land
Area
(sq
m)
|
|
Xxx
Xxx Xxxx (2008) di 00739 (________ ( 2009)__ 00739__) (“Land
A”)
|
GK
Company
|
Expiration
on 29 June 2057
|
65,331
|
|
Xxx
Xxx Xxxx (2009) di 00341(________ ( 2009)__ 00.41__) (“Land
B”)
|
GC
Company
|
Expiration
29 June 2057
|
68,002
|
|
Xxx
Xxx Yong (2009) di 00103 (________ ( 2009)__ 00103__) (“Land
C”)
|
GW
Company
|
Expiration
29 June 2057
|
70,779.58
|
|
Xxx
Xxx Xxxx (2009) di 00989 (________ ( 2009)__ 00989__) (“Land
D”)
|
GW
Company
|
Expiration
29 June 2057
|
28,688
|
(D)
Seller has been authorized by PRC Subsidiaries to grant an option to the
Purchaser for purchasing the Transferred Property (as defined below) subject to
the terms and provisions as set out below; and
(E)
Purchaser desires to procure an Option to purchase the Transferred Property
by,
its designated company with Chinese legal entity (“Designated Company”) upon the
terms and provisions as hereinafter set forth;
NOW, THEREFORE, for good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged by the parties hereto and for the mutual covenants contained
herein, each of the parties hereby agrees as follows:
ARTICLE I
— DEFINITIONS
1.1 Except
as otherwise construed in the context, the following terms in this Agreement
shall be interpreted to have the following meanings:
“Call
Option” shall mean the right granted pursuant Clause 2.1.
“Call
Option Term” shall mean that period of time commencing on the Execution Date and
ending on or before March 18, 2011.
“Closing
Date” shall mean the last day of the closing term or such other date during the
closing term selected by Purchaser.
“Completion”
shall mean the completion of the sale and purchase of the Transferred
Property.
“Disposal
Contract” shall mean the real property purchase contract pursuant to Clause
5.1.
“Execution
Date” shall mean the day upon which the last party to this Agreement shall duly
execute this Agreement.
“GK
Company” shall mean Guanke (Fujian) Electron Technological Industry Co., Ltd.,
the owner of Land A.
“GC
Company” shall mean Guancheng (Fujian) Technology Co., Ltd., the owner of Land
B.
“GW
Company” shall mean Guanwei (Fujian) Technology Co., Ltd., the owner of Land C
and Land D.
“Hong
Kong” shall mean the Hong Kong Special Administrative Region of the People’s
Republic of China.
“Option
Exercise Date” shall mean that date, within the Call Option Term, upon which the
Purchaser shall be entitled to exercise its Call Option to purchase the,
Transferred Land by sending a written notice to Seller.
“PRC”
shall mean the People’s Republic of China.
“PRC Law”
shall mean the then valid laws, administrative regulations, administrative
rules, local regulations, judicial interpretations and other binding regulatory
documents of the People’s Republic of China.
“PRC
Subsidiaries” shall mean GK Company, GC Company and GW Company.
“Put
Option” shall mean the right granted pursuant Clause 3.1.
“RMB
shall mean Renminbi, the lawful currency of the PRC.
“Transferred
Property” shall mean the Land Use Right of Transferred Land and the buildings
attached to the Transferred Land.
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“US$”
shall mean United States dollars, the lawful currency of the United States of
America.
1.2 Except
as otherwise stated in the context herein, all references to an Article, clause,
item or paragraph shall refer to the relevant part of this
Agreement.
ARTICLE 2
- GRANT OF CALL OPTION
2.1 In
consideration of the sum of US$1.00 paid by the Purchaser (the receipt and
sufficiency of which is hereby unconditionally and irrevocably acknowledged and
confirmed by the Seller), Seller does hereby grant to Purchaser the exclusive
right, exercisable at any time during the Call Option Period, to require the
Seller to sell all (but not part only) of the Transferred Property on Purchase
Price set out in Clause 5.1(a) to the Designated Company.
ARTICLE 3
- GRANT OF PUT OPTION
3.1 In
consideration of the sum of US$1.00 paid by the Seller (the receipt and
sufficiency of which is hereby unconditionally and irrevocably acknowledged and
confirmed by the Purchaser), and if the Purchaser fails to exercise its Call
Option during the Call Option Term, the Seller shall be entitled the exclusive
right, exercisable at any time after the last day of the Call Option Term , to
require the Purchaser to purchase all (but not part only) of the Transferred
Property on Option Price.
ARTICLE 4
- EXERCISE OF OPTIONS
4.1 Purchaser
may exercise its Call Option to purchase the Transferred Property, at any time
during the Call Option Term, by giving a written notice to Se it As provided for
above, the date of sending of said notice shall be the Call Option Exercise
Date.
4.2 In
the event the Purchaser fails to exercise its Call Option to purchase the
Transferred Property during the Call Option Term, Seller shall be entitled to
exercise its Put Option, at any time after the Call Option Term, by giving a
written notice thereof to Purchaser. As provided for above, the date
of sending of said notice shall be the Put Option Exercise Date.
ARTICLE 5
- CONTRACT FOR PURCHASE OR SALE OF
TRANSFERRED
PROPERTY
5.1 In
the event that the Purchaser exercises Call Option or Seller exercises its Put
Option provided in Article 4 above, Seller shall procure PRC Subsidiaries to
agree and sell, while Purchaser shall procure the Designated Company to buy the
Transferred Property, and the Purchaser and Seller agree to reach and execute a
Disposal Contract for such purchase or sale of the Transferred Property in
accordance with the following terms and conditions:
(a) Purchase
Price. The purchase price for the Transferred Property shall be the
sum of (i) the amount of all costs and expenses incurred by the PRC
Subsidiaries for acquiring the State-owned Land Use Rights of the Transferred
Land, plus (ii) the amount of all costs and expenses relating to the
building of structures attached on the Transferred Land;
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Notwithstanding
the above, under no circumstances shall the exercise of this Option and the
Purchase Price paid cause Seller to realize a cash` loss or an accounting loss
under U.S. GAAP.
(b) Closing
Date. The closing date shall be on the day after the Disposal
Contract executed by both parties or at any other date during the Call Option
Term as may be determined by Purchaser;
(c) Closing
Costs. Any cost incurred by Purchaser and PRC Subsidiaries for
closing of the Disposal Contract shall be borne by each party incurring-such
costs;
(d) Default
by Purchaser; Remedies of Seller. In the event Purchaser, alter
exercising of the Call Option, fails to proceed with the closing of the purchase
of the Transferred Property pursuant to the terms and provisions as contained
herein and/or under the Disposal Contract, Seller shall be entitled to either
xxx for specific performance of the Disposal Contract or terminate the Disposal
Contract and xxx for monetary damages;
(e) Default
by Seller; Remedies of Purchaser. In the event Seller or its PRC
Subsidiaries fails to close the transaction of the Transferred Property subject
to the terms and conditions of this Agreement and/or under the Disposal
Contract, Purchaser shall be entitled to either xxx for specific performance of
the Disposal Contract or terminate the Disposal Contract and xxx for monetary
damages; and
(f) Governing
Law. The Disposal Contract shall be governed by and construed in
accordance with the PRC Law.
ARTICLE 6
- WARRANTIES
6.1 It
is acknowledge by the parties hereto that the Transferred Property has been
mortgaged securing the bank loans offered to GK Company. Seller
undertakes that, prior to the Purchaser’s exercising the Call Option, it will
procure the PRC Subsidiaries to release the mortgage or obtain the approval from
the mortgagee for the transaction of the Transferred Property, and shall procure
the PRC Subsidiaries to obtain all necessary permits and approval from any third
party or competent governmental authority.
6.2 The
Seller warrants that it has been duly authorized by PRC Subsidiaries execution
of this Agreement, and PRC Subsidiaries will, as directed by Seller, carry out
all the formalities in connections with the purchase or sale of the Transferred
Property upon exercising the Call Option by Purchaser.
6.3 For
the purpose of complying with PRC Laws and exercising of the Call Option and/or
the Put Option hereunder, Purchaser warrants that it will procure the Designated
Company to purchase the Transferred Property pursuant to Article 5 and reach a
long-term lease contract (no less than 20 years) with GK Company, which shall
provide GK Company with the right of rent the Transferred Property at a
favorable prevailing market price as agreed by the parties
thereto..
6.4 Each
party hereto warrants to the other party that, throughout the continuant this
Agreement up to and including Completion:
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(a) it
is duly organized, validly existing and in good standing (or equivalent status
in applicable jurisdiction) under, and by virtue of, the laws of the place of
its establishment and has all requisite power and authority to own its assets
and properties and to carry on its business as now conducted, it has the legal
right and full capacity, power and authority to enter into and perform this
Agreement and this Agreement constitutes valid and binding obligations on it in
accordance with its terms;
(b) all
corporate and other actions, consents, permits, licenses and governmental,
regulatory and other approvals (including approvals of its directors and
shareholders) required to be taken, made or obtained by it for the
authorization, execution and delivery of, and the performance of all of its
obligations under this Agreement, for the other party to be able to enforce such
obligations, and for or in connection with the transactions and arrangements
contemplated hereunder, have been taken, made and obtained or will be taken,
made and obtained prior to Completion;
(c) no
order has been made or petition presented or resolution passed for the winding
up of any of them; no distress, execution or other process has been levied
against it or any of its assets and no action has been taken to repossess any
goods or assets in the possession of any of them. It has not stopped
payment and is not insolvent or unable to pay its debts as they fall due and has
not made or proposed any arrangement or composition with its
creditors. No administrative or other receiver has been appointed by
any person, company or any other entity of its business or assets or any part
thereof, nor has any order been made, petition presented or any other step taken
for the appointment of an administrator or receiver in respect of it or any of
its assets. There has been no delay by it in the payment of any
material obligation due for payment; and
(d) the
execution, delivery and performance of and compliance with this Agreement and
the consummation of the transactions contemplated hereby will not result in any
violation, breach or default or be in conflict with or constitute, with or
without the passage of time or the giving of notice or both, either a default
under any material contract or agreement to which it is a party or by which it
may be bound, or a violation of any applicable law, rules or regulations or any
order to which it is subject, or an event which results in the creation or
enforcement of any encumbrance upon any assets and properties of any of
them.
ARTICLE 7
- MISCELLANEOUS
7.1 Execution
by the parties. This Agreement shall not become effective and binding
until fully executed by the parties.
7.2 Notice. All
notices, demands and/or consents provided for in this Agreement shall be in
writing and shall be delivered to the parties hereto by hand or by mail with
postage pre-paid. Such notices shall be deemed to have been served on
the date mailed. All such notices and communications shall be
addressed to the Seller at SGOCO Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, Xxxxxx,
Xxxxx, 000000 and to Purchaser at SGOCO Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx,
Xxxxxx, Xxxxx, 000000, or at such other address as either may specify to the
other in writing.
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7.3 Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of Hong Kong and the parties hereto agree to submit to the
non-exclusive jurisdiction of the courts of Hong Kong.
7.4 Successors
and Assigns. This Agreement shall be binding upon each party’s
successors and assigns and personal representatives (as the case may be) and is
freely assignable and transferable.
7.5 Term.
(a) this
Agreement will be deemed to have commenced on the Effective Date and ending on
(a) the date on which Call Option is exercised by Purchaser, or (b) the date on
which Put Option is exercised by Seller.
(b) Upon
Xxxxxxxx Or’s written request, the Call Option Term may be renewed for an
additional 12-month term.
7.6 Headings. The
headings inserted at the beginning of each paragraph and/or subparagraph are for
convenience of reference only and shall not limit or otherwise affect or be used
in the construction of any terms or provisions hereof.
7.7 Cost
of this Agreement. Any cost and/or fees incurred by each of the
parties hereto shall be borne by the respective party incurring such cost and/or
fee.
7.8 Entire
Agreement. This Agreement contains all of the terms, promises,
covenants, conditions and representations made or entered into by or among the
parties and supersedes all prior discussions and agreements whether written or
oral between the parties hereto with respect to the Option and all other matters
contained herein and constitutes the sole and entire agreement between the
parties hereto. This Agreement may not be modified or amended unless
such amendment is set forth in writing and executed by each of the parties
hereto with the formalities hereof.
IN
WITNESS whereof the parties have executed this Agreement the day and year first
above written.
| SIGNED BY | ) | /s/ Seal of Honesty | ||
|
a
director for and on behalf of
|
) |
Group
Holdings
|
||
|
HONESTY
GROUP HOLDINGS LIMITED
|
) |
Limited
|
||
|
in
the presence of:
|
) |
|
SIGNED BY
XX. XXXXXXXX OR /s/ Xxxxxxxx
Or
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AMENDMENT
TO OPTION AGREEMENT
This Amendment to Option Agreement
(“Amendment”) is made this 9th day of February, 2010, and amends the Option
Agreement for Purchase of Real Property (“Option Agreement”), dated February,
2010, between Honesty Group Holdings Limited (“Seller”) and Xx. Xxxxxxxx Or,
whose Hong Kong Identity Card No. is D492593A (“Purchaser”).
WHEREAS, the parties desire to clarify
a provision of the Option Agreement and have agreed to the amendment provided
herein for that purpose;
NOW, THEREFORE, in consideration of the
premises and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms
used in this Amendment and not defined herein are used with the meaning ascribed
thereto in the Option Agreement.
2. Amendment. Section 4.1 of the
Option Agreement is hereby amended by adding the following sentence at the end
thereof:
In no
event shall any exercise of the Call Option be effective unless a lease of the
Transferred Property, as described in Section 6.3 below, is agreed upon between
the GK Company and the Purchaser or the Designated Company to be entered into
simultaneously with the closing of the purchase of the Transferred
Property.
3. Miscellaneous. Except
as expressly amended hereby, the Option Agreement shall continue in full force
and effect as written. This Amendment shall be subject to the
provisions of Sections 7.3 [Governing Law], 7.4 [Successors and assigns], 7.6
[Headings], and 7.7 [Cost] of the Option Agreement as if fully set forth
herein. This Amendment may not be modified or amended unless such
amendment is set forth in a writing and executed by each of the parties hereto
with the formalities hereof.
IN
WITNESS WHEREOF, the parties have executed this Amendment the day and year first
above written.
SIGNED
BY
a
director for and on behalf of
HONESTY
GROUP HOLDINGS LIMITED /s/ Honesty
Group
in the
presence of:
SIGNED BY
XX. XXXXXXXX OR /s/ Xxxxxxxx
Or
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