CALL OPTION AGREEMENT
This CALL
OPTION AGREEMENT (this “Agreement”) is made and
entered into as of July 9, 2010 (the “Effective Date”), among
Xxxxxxx Xxx with the ID number 000000000000000000, a resident of the People’s
Republic of China (the “Purchaser”) and Xxxxxx Xxx Xx
with the passport number 000000000, a resident of U.S. (the “Seller”). Purchaser and Seller
are also referred to herein together as the “Parties” and individually as a
“Party.”
RECITALS
WHEREAS, BUYONATE, INC., a
Delaware shell company (the “Shell Company”), CHINA
ELECTRONIC HOLDINGS, INC, a Delaware corporation (“CEH”) and the stockholders and
warrantholders of CEH have entered into a Share Exchange Agreement (the “Exchange Agreement”) as of
July 9, 2010. Pursuant to the Exchange Agreement, the Shell Company is expected
to acquire 100% of the issued and outstanding capital stock of CEH;
WHEREAS, at the closing of the
Exchange Agreement, the Seller will hold directly 11,556,288 shares
of common stock of the Shell Company (the “Common Stock”);
WHEREAS, the Seller desires to
grant to Purchaser an option to acquire 100% of the shares of Common Stock to be
issued to her pursuant to the Exchange Agreement (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
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, US $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 filing
of Form 10-Q with the U.S. Securities and Exchange Commission (the “Filing”),
following the execution of the Exchange Agreement.
“Condition 2” means 2 years
after the Filing.
"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 the Shell Company 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.
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“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.
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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50 | % | ||
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Condition
2
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50 | % | ||
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 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.
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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 Call Right and the aggregate Call Price.
Provided the Call Exercise Notice is delivered in accordance with Section 5.4 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.
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.
2..8 Voting Trust: The
Seller hereby agrees to irrevocably appoint the Purchaser with the exclusive
right to
exercise,
on his behalf, all of his voting rights of the Seller’s Shares in accordance
with the relevant laws and Articles of Association of the Shell Company; the
Purchaser shall have right to vote on behalf of the Seller to vote for relevant
issues including but not limited to selling or transferring all or any of his
shares of the Shell Company, and to appoint and elect the directors of the Shell
Company, CEH and Lu’an Guoying Electronic Sales Co., Ltd. (the “Company”), a PRC company which
is the wholly owned subsidiary of CEH, before all Seller’s Shares are
transferred to the Purchaser. The Purchaser agrees to accept such
authorization.
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, 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.
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.
4..3. Covenants.
(a) Without
the prior written consent of the Purchaser, the Seller shall vote the Seller’s
Shares such that the Shell Company 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 the Shell Company or other similar equivalent
arrangements, (ii) alter the shareholding structure of the Shell Company and/or
CEH, (iii) cancel or otherwise alter the Seller’s Shares, (iv) amend the charter
or the by-laws of the Shell Company and/or CEH, (v) liquidate or wind up the
Shell Company and/or CEH, (vi) sell, transfer, assign, hypothecate or otherwise
reduce the value of any assets held by the Shell Company including but without
limitation, any and all shares of CEH held by the Shell Company and the Company
held by CEH, (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 or (vii) transfer, assign,
pledge, hypothecate or vest any option on his shares in the Shell Company to any
third party. The Seller shall cause the Shell Company, CEH and the Company to
disclose to the Purchaser true copies of all the financial, legal and commercial
documents of the Shell Company, CEH and the Company and the resolutions of the
shareholders and the board of directors.
(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).
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(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
his 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.
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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.
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 5.4.
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.
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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.
5.10 Supersede. This
Agreement will supersede and replace all other agreements between the Parties of
the same subject matter.
[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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Xxxxxxx
Xxx
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Seller:
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Xxxxxx
Xxx
Xx
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APPENDIX
A
Form of Exercise
Notice
[Date]
[________________]
(the “Seller”)
[________________]
[________________]
Attention:
[_______]
Re: Call
Option Agreement dated July 9, 2010 (the “Call Option Agreement”) among
Xxxxxxx Xxx (“Purchaser”) and Xxxxxx Xxx Xx
(the “Seller”).
Dear
Sir:
In
accordance with Section 2.4 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 US$
to the
Seller.
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Dated: _______________,
______
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_______________________________
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9
Form of Transfer
Notice
To : [ ] (the “Seller”)
From
: [ ] (the “Purchaser”)
I, the
undersigned, refer to the Call Option Agreement (the "Call Option Agreement") dated
July 9, 2010 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,.
Nominees
Option Shares
to be Transferred
Dated
[ ]
Yours
faithfully
