VOTING TRUST AGREEMENT
THIS
VOTING TRUST AGREEMENT (“Agreement”) is made and entered into by and between
Xxxxxx Xxx Xx (the “Holder”), a shareholder of Buyonate, Inc. (the
“Corporation”), and Xxxxxxx Xxx (the “Voting Trustee”) as of July 9,
2010.
RECITALS:
WHEREAS,
the Holder owns an aggregate of 11,556,288 shares (the “Shares”) of
the Corporation’s common stock, par value $0.0001 per share (the “Common Stock”)
as of the date hereof; and
WHEREAS,
pursuant to a Call Option Agreement dated as of the date hereof between the
Voting Trustee and the Holder, the Voting Trustee has the right to acquire all
of the Holder’s Shares.
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
obligations set forth herein, the parties agree as follows:
1. Voting Trust.
1.1. Creation of Voting Trust. The
Voting Trustee, is hereby appointed voting trustee under the voting trust
created by this Agreement. During the term of this Agreement, the Voting Trustee
shall act as voting trustee in respect to the Shares, with all the powers,
rights and privileges and subject to all the conditions and covenants
hereinafter set forth.
1.2. Deposit of Shares. Within ten
days after the execution and delivery of this Agreement, the Holder will assign
and transfer, or cause to be assigned and transferred, to the Voting Trustee all
of the Shares. The Holder shall deliver to the Voting Trustee the certificates
representing such Shares, duly endorsed in blank or accompanied by stock powers
or other instruments of assignment duly executed in blank, free and clear of any
liens, claims, encumbrances or other rights of third parties.
1.3. Issue of Share Certificates to
Voting Trustee. The stock certificates representing the Shares shall be
surrendered by the Voting Trustee to the Corporation and cancelled, and new
certificates representing the Shares shall be issued by the Corporation to and
in the name of the Voting Trustee, and the fact that such certificates are
issued pursuant to this Agreement shall appear on their face and shall be noted
by the Corporation on its stock transfer records. The Voting Trustee is
authorized and empowered to cause to be made any further transfers of the Shares
which may become necessary through the occurrence of any change of persons
holding the office of Voting Trustee.
1.4. Acceptance of Trust. The
Voting Trustee accepts the trust created hereby in accordance with all of the
terms and conditions contained in this Agreement. The Shares shall be held by
the Voting Trustee for the purposes of and in accordance with this Agreement,
and none of the Shares, or any interest therein, shall be sold or otherwise
disposed of, pledged or encumbered by the Voting Trustee, except as provided in
this Agreement and in the Call Option Agreement dated as of the date herein to
which the Shares are subject (the “Option”).
2. Dividends and
Distributions.
2.1. Dividends or Distributions Payable
in Cash or Other Property. The Voting Trustee shall, from time to time,
pay or cause to be paid to Holder, his pro rata share of any dividends or
distributions payable in cash or property, other than voting stock of the
Corporation, collected by the Voting Trustee upon the Shares deposited
hereunder. For the purpose of making any such payment, or for any other purpose,
the Voting Trustee may, in his discretion, fix such date as they may reasonably
determine as a record date for the determination of persons entitled to any
payments or other benefits hereunder, or order their transfer books closed for
such period or periods of time as they shall deem proper.
2.2. Share Dividends or
Distributions. The Voting Trustee shall receive and hold, subject to the
terms of this Agreement, any voting stock of the Corporation issued in respect
of the Shares by reason of any recapitalization, share dividend, split,
combination or the like.
3. Matters Relating to Administration
of Voting Trust; Voting.
3.1. Action by Voting Trustee. The
Voting Trustee shall possess and be entitled, subject to the provisions hereof,
in his discretion, to exercise all the rights and powers of absolute owners of
all Shares, including, but without limitation, the right to receive dividends on
Shares, and the right to vote, consent in writing or otherwise act with respect
to any corporate or shareholders' actions. Such corporate or shareholders'
actions include, but are not limited to, any increase or reduction in the stated
capital of the Corporation, any classification or reclassification of any of the
shares as now or hereafter authorized into preferred or common stock or other
classes of shares with or without par value, any amendment to the Articles of
Incorporation or Bylaws, any merger or consolidation of the Corporation with
other corporations, any sale of all or any part of its assets, and the creation
of any mortgage or security interest in or lien on any property of the
Corporation. It is expressly stipulated that no voting right shall pass to
others by or under this Agreement, or by or under any other express or implied
agreement.
3.2. Indemnification. The Holder
shall indemnify and hold the Voting Trustee harmless from and against any and
all liabilities, losses, costs, and expenses, including reasonable attorneys'
fees, in connection with or arising out of the administration of the voting
trust created by this Agreement or the exercise of any powers or the performance
of any duties by the Voting Trustee as herein provided or contemplated, to the
fullest extent permitted under the law.
4. Dissolution of Corporation.
In the event of the dissolution or total or partial liquidation of the
Corporation, whether voluntary or involuntary, the Voting Trustee shall receive
the monies, securities, rights or property to which the Holder of Shares is
entitled, and shall distribute the same to the Holder.
5. Reorganization of
Corporation. In case the Corporation is merged into or consolidated with
another corporation, or all or substantially all of the assets of the
Corporation are transferred to another corporation, then in connection with such
transfers the term “Corporation” for all purposes of this Agreement shall be
taken to include such successor corporation, and the Voting Trustee shall
receive and hold under this Agreement any voting stock of such successor
corporation received on account of the ownership, as Voting Trustee hereunder,
of Shares held hereunder prior to such merger, consolidation or
transfer.
6. Termination; Release of Shares.
This Agreement shall have the same term as the Option and shall terminate
only upon the termination of the Option.
7. Amendments. This Agreement
may be amended or terminated at any time by an instrument in writing duly
executed and acknowledged by the Holder and the Voting Trustee.
8. Miscellaneous.
8.1. Benefits of this Agreement;
Survival. The terms of this Agreement shall be binding upon and inure to
the benefit of and shall be enforceable by the Holder, the Voting Trustee, and
their respective successors and assigns.
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8.2. Notice. Any notice, request,
offer, acceptance or other communication permitted or required to be given
hereunder to the Holder or the Voting Trustee shall be sent by certified mail or
by courier service, return receipt requested, or hand-delivered to such person
at the address set forth below:
Holder:
Xxxxxx
Xxx Xx
00 Xxxxxx
Xxxxxx Xxxxxx Xxxx Xxxx, XX 00000
Voting Trustee:
Xxxxxxx
Xxx
Building
3, Binhe District, Longhe East Road, Lu’an City,
Anhui
Province, PRC
or at
such other addresses as may be established by notice hereunder. Any notice so
given shall be deemed effective at the time of delivery indicated on the duly
completed postal service or courier receipt or when hand-delivered.
8.3. Severability. In case any
provision of this Agreement shall be held to be invalid or unenforceable in
whole or in part, neither the validity nor the enforceability of the remainder
of this Agreement shall be in any way affected.
8.4. Descriptive Headings; Gender.
The headings in this Agreement are for the convenience of reference only and
shall not limit or otherwise affect the provisions hereof. The use of the
masculine gender shall be deemed to include the feminine and neuter
gender.
8.5. Counterparts of this
Agreement. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
8.6. Governing Law. This Agreement
and the rights and obligations of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of New York.
[Signature
Page Follows]
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The
respective parties have caused this Agreement to be executed as of the date
first above written.
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Voting
Trustee:
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Xxxxxxx
Xxx
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Holder:
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Xxxxxx
Xxx Xx
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