Contract
THE
SECURITIES REPRESENTED BY OR UNDERLYING THIS PURCHASE OPTION HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“ACT”) OR APPLICABLE
STATE LAW. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE
STATE LAW AND EXCEPT AS OTHERWISE PROVIDED FOR HEREIN.
NOT
EXERCISABLE PRIOR TO ___________, 2007.
VOID
AFTER 5:00 P.M. EASTERN TIME, _________, 2011.
PURCHASE
OPTION
For
the Purchase of up to
[________]
Ordinary Shares
of
Fuwei
Films (Holdings) Co., Ltd.
(A
Cayman Islands Company)
Section
1. Purchase
Option.
THIS
PURCHASE OPTION CERTIFIES THAT,
in
consideration of $100.00 duly paid by or on behalf of Maxim Partners, LLC
(“Holder”),
as
registered owner of this Purchase Option, to Fuwei Films (Holdings) Co., Ltd.,
a
Cayman Islands corporation (the “Company”),
Holder is entitled to subscribe for, purchase and receive, in whole or in part,
up to [____________] ([______]) ordinary shares, par value US$0.129752 per
share, of the Company (the “Shares”),
at
any time during the period commencing six (6) months (the
“Commencement
Date”),
and
expiring at 5:00 p.m. New York City Time five (5) years, (“Expiration
Date”)
from
the closing date of the Company’s initial public offering (the “Closing
Date”)
described in that certain registration statement on Form F-1, as amended (No.
333-138948) (the “Registration
Statement”)
pursuant to which the Company has registered the Shares. If the Expiration
Date
is a day on which banking institutions in New York City are authorized by law
to
close, then this Purchase Option may be exercised on the next succeeding day
that is not such a day in accordance with the terms herein. During the period
ending on the Expiration Date, the Company agrees not to take any action that
would terminate the Purchase Option. This Purchase Option is initially
exercisable at $[_______] per share purchased [115% of the initial public
offering price per share] (the “Exercise
Price”);
provided,
however,
that
upon the occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Purchase Option, including the Exercise Price and the
number of Shares to be received upon such exercise, shall be adjusted as therein
specified. The term “Exercise Price” as used herein shall mean the initial
exercise price of this Purchase Option as set forth above or the adjusted
exercise price, depending on the context.
Section
2. Exercise.
Section
2.1 Exercise
Form.
In
order to exercise this Purchase Option, the exercise form attached hereto as
Annex I must be duly executed and completed and delivered to the Company,
together with this Purchase Option and payment of the Exercise Price in cash,
check or wire transfer of immediately available funds (to an account designated
by the Company) for the Shares being purchased. If the subscription rights
represented hereby shall not be exercised at or before 5:00 p.m., New York
City
time, on the Expiration Date, this Purchase Option shall become and be void
without further force or effect, and all rights represented hereby shall cease
and expire.
Section
2.2 Legend.
Each
certificate for Shares purchased under this Purchase Option shall bear a legend
as follows unless such Shares have been registered under the Securities Act
of
1933, as amended (the “Act”):
“The
Shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (“Act”) or applicable state law. The Shares
may not be offered for sale, sold or otherwise transferred except pursuant
to an
effective registration statement under the Act, or pursuant to an exemption
from
registration under the Act and applicable state law.”
Section
2.3 Conversion
Right.
Section
2.3.1 Determination
of Amount.
In lieu
of the payment of the Exercise Price in the manner required by Section 2.1,
the
Holder shall have the right (but not the obligation) to exercise this Purchase
Option on a cashless basis by converting any exercisable but unexercised portion
of this Purchase Option into Shares (“Conversion
Right”)
as
follows. Upon exercise of the Conversion Right, the Company shall deliver to
the
Holder (without payment by the Holder of any of the Exercise Price in cash)
that
number of Shares equal to the quotient obtained by dividing: (x) the “Value” (as
defined below), at the close of trading on the next to last trading day
immediately preceding the exercise of the Conversion Right, of the portion
of
the Purchase Option being converted by (y) the “Market Price” (as defined
below). The “Value”
of
the
portion of the Purchase Option being converted shall equal the remainder derived
from subtracting: (a) the Exercise Price multiplied by the number of Shares
underlying that portion of the Purchase Option being converted from (b) the
Market Price of the Common Stock multiplied by the number of Shares underlying
that portion of the Purchase Option being converted. As used in this herein,
the
term “Market
Price”
at
any
date shall be deemed to be the last reported sale price of the Common Stock
on
such date, or, in case no such reported sale takes place on such day, the last
reported sale price for the immediately preceding trading day, in either case
as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed
or
admitted to trading on any national securities exchange or if any such exchange
on which the Common Stock is listed is not its principal trading market, the
last reported sale price as furnished by the NASD through the Nasdaq Global
Select Market, Nasdaq Global Market or Nasdaq Capital Market, or, if applicable,
the OTC Bulletin Board, or if the Common Stock is not listed or admitted to
trading on any of the foregoing markets, or similar organization, as determined
in good faith by resolution of the Board of Directors of the Company using
industry standard valuation methods based on the best information available
to
it.
Section
2.3.2 Mechanics
of Conversion.
The
Conversion Right may be exercised by the Holder on any business day on or after
the Commencement Date and not later than the Expiration Date by delivering
the
Purchase Option with a duly executed exercise form attached hereto with the
Conversion Right section completed to the Company, exercising the Conversion
Right and specifying the total number of Shares that the Holder will purchase
pursuant to such Conversion Right.
Section
3. Transfer.
Section
3.1 General
Restrictions.
The
registered Holder of this Purchase Option, by its acceptance hereof, agrees
that
it will not, pursuant to NASD Rule 2710(g)(1) (and except as provided for in
NASD Rule 2710(g)(2), including any transfers to the underwriters of the
offering described in the Registration Statement (the “Underwriters”)
and
bona fide partners and officers of the Underwriters and selling group members),
sell this Purchase Option during the offering contemplated by the Registration
Statement, nor shall such Holder sell, transfer, assign, pledge, or hypothecate
this Purchase Option (including the securities hereunder), or cause this
Purchase Option or the securities hereunder to be the subject of any hedging,
short sale, derivative, put, or call transaction that would result in the
effective economic disposition of this Purchase Option or the securities
hereunder by any person prior to the Commencement Date. On and after the
Commencement Date, transfers to others may be made subject to compliance with
or
exemptions from applicable securities laws. In order to make any permitted
assignment, the Holder must deliver to the Company the assignment form attached
hereto as Xxxxx XX duly executed and completed, together with the Purchase
Option and payment of all transfer taxes, if any, payable in connection
therewith. The Company shall promptly (but in no event more than five (5)
business days from its receipt of the assignment) transfer this Purchase Option
on the books of the Company and shall execute and deliver a new Purchase Option
or Purchase Options of like tenor to the appropriate assignee(s) expressly
evidencing the right to purchase the aggregate number of Shares purchasable
hereunder or such portion of such number as shall be contemplated by any such
assignment. The effective date of any transfer shall be the date the Company
receives the assignment form or such later date as may be provided for
therein.
Section
3.2 Restrictions
Imposed by the Act.
This
Purchase Option and the Shares underlying this Purchase Option shall not be
transferred unless and until: (i) the Company has received the opinion of
counsel for the Holder that this Purchase Option or the Shares, as the case
may
be, may be transferred pursuant to an exemption from registration under the
Act
and applicable state law, the availability of which is established to the
reasonable satisfaction of the Company (the Company hereby agreeing that an
opinion of Xxxxxxxxxx & Xxxxx LLP shall be deemed satisfactory evidence of
the availability of an exemption), or (ii) a registration statement relating
to
such Purchase Option or Shares, as the case may be, has been filed by the
Company and declared effective by the U.S. Securities and Exchange Commission
(“SEC”)
and
compliance with applicable state law.
Section
4. New
Purchase Options to be Issued.
Section
4.1 Partial
Exercise or Transfer.
Subject
to the restrictions in Section 3 hereof, this Purchase Option may be exercised
or assigned in whole or in part. In the event of the exercise or assignment
hereof in part only, upon surrender of this Purchase Option for cancellation,
together with the duly executed exercise or assignment form and funds sufficient
to pay any Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Purchase Option of like tenor
to
this Purchase Option in the name of the Holder evidencing the right of the
Holder to purchase the aggregate number of Shares purchasable hereunder as
to
which this Purchase Option has not been exercised or assigned.
Section
4.2 Lost
Certificate.
Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Purchase Option and of reasonably satisfactory
indemnification, the Company shall execute and deliver a new Purchase Option
of
like tenor and date. Any such new Purchase Option executed and delivered as
a
result of such loss, theft, mutilation or destruction shall constitute a
substitute contractual obligation on the part of the Company.
Section
5. Registration
Rights.
Section
5.1 Demand
Registration.
Section
5.1.1 Grant
of Right.
The
Company, upon written demand (a “Demand
Notice”)
of the
Holder(s) of at least 51% of the Purchase Options and/or the underlying Shares
(“Majority
Holders”),
agrees to register, on two occasions (at least twelve months apart), all or
any
portion of the Shares underlying the Purchase Options (collectively the
“Registrable
Securities”).
On
such occasions, the Company will file a registration statement with the SEC
covering the Registrable Securities within sixty (60) days after receipt of
a
Demand Notice and use its reasonable best efforts to have the registration
statement declared effective promptly thereafter, subject to compliance with
review by the SEC; provided,
however,
that
the
Company shall not be required to comply with a Demand Notice if the Company
has
filed a registration statement with respect to which the Holder is entitled
to
piggyback registration rights pursuant to Section 5.2 hereof and either: (i)
the
Holder has elected to participate in the offering covered by such registration
statement or (ii) if such registration statement relates to an underwritten
primary offering of securities of the Company, until the offering covered by
such registration statement has been withdrawn or until thirty (30) days after
such offering is consummated.
The
demands for registration may be made at any time during a period of four (4)
years beginning one (1) year from the Closing Date. The Company covenants and
agrees to give written notice of its receipt of any Demand Notice by any
Holder(s) to all other registered Holders of the Purchase Options and/or the
Registrable Securities within ten (10) days from the date of the receipt of
any
such Demand Notice.
Section
5.1.2 Terms.
The
Company shall bear all fees and expenses attendant to the first registration
of
the Registrable Securities pursuant to Section 5.1.1, but the Holders shall
pay
any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. The Holders shall bear all fees and expenses (including
all underwriting commissions and the expenses of any legal counsel selected
by
the Holders to represent them) in connection with the second registration of
the
Registrable Securities described in Section 5.1.1 hereof. The Company agrees
to
use its reasonable best efforts to cause the filing required herein to become
effective promptly and to qualify or register the Registrable Securities in
such
States as are reasonably requested by the Holder(s); provided,
however,
that in
no event shall the Company be required to register the Registrable Securities
in
a State in which such registration would cause: (i) the Company to be obligated
to register or license to do business in such State or submit to general service
of process in such State, or (ii) the principal shareholders of the Company
to
be obligated to escrow their shares of capital stock of the Company. The Company
shall cause any registration statement filed pursuant to the demand right
granted under Section 5.1.1 to remain effective for a period of at least twelve
consecutive months from the date that the Holders of the Registrable Securities
covered by such registration statement are first given the opportunity to sell
all of such securities. The Holders shall only use the prospectuses provided
by
the Company to sell the shares covered by such registration statements, and
will
immediately cease to use any prospectus furnished by the Company if the Company
advises the Holder that such prospectus may no longer be used due to a material
misstatement or omission.
Section
5.2 “Piggy-Back”
Registration.
Section
5.2.1 Grant
of Right.
In
addition to the demand right of registration, described in Section 5.1 hereof
the Holder shall have the right, for a period of four (4) years commencing
one
(1) year from the Closing Date, to include the Registrable Securities as part
of
any other registration of securities filed by the Company (other than in
connection with a transaction contemplated by Rule 145(a) promulgated under
the
Act or pursuant to Form S-8 or any equivalent form); provided,
however,
that if,
solely in connection with any primary underwritten public offering for the
account of the Company, the managing underwriter(s) thereof shall, in its
reasonable discretion, impose a limitation on the number of shares of Common
Stock which may be included in the Registration Statement because, in such
underwriter(s)’ judgment, marketing or other factors dictate such limitation is
necessary to facilitate public distribution, then the Company shall be obligated
to include in such Registration Statement only such limited portion of the
Registrable Securities with respect to which the Holder requested inclusion
hereunder as the underwriter shall reasonably permit. Any exclusion of
Registrable Securities shall be made pro rata among the Holders seeking to
include Registrable Securities in proportion to the number of Registrable
Securities sought to be included by such Holders; provided,
however,
that
the Company shall not exclude any Registrable Securities unless the Company
has
first excluded all outstanding securities, the holders of which are not entitled
to inclusion of such securities in such Registration Statement or are not
entitled to pro rata inclusion with the Registrable Securities.
Section
5.2.2 Terms.
The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities pursuant to Section 5.2.1 hereof, but the Holders shall
pay any and all underwriting commissions and the expenses of any legal counsel
selected by the Holders to represent them in connection with the sale of the
Registrable Securities. In the event of such a proposed registration, the
Company shall furnish the then Holders of outstanding Registrable Securities
with not less than thirty (30) days written notice prior to the proposed date
of
filing of such registration statement. Such notice to the Holders shall continue
to be given for each registration statement filed by the Company until such
time
as all of the Registrable Securities have been sold by the Holder. The holders
of the Registrable Securities shall exercise the “piggy-back” rights provided
for herein by giving written notice, within ten (10) days of the receipt of
the
Company’s notice of its intention to file a registration statement.
Section
5.3 General
Terms.
Section
5.3.1 Indemnification.
The
Company shall indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who
controls such Holders within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (“Exchange
Act”),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them may
become subject under the Act, the Exchange Act or otherwise, arising from such
registration statement but only to the same extent and with the same effect
as
the provisions pursuant to which the Company has agreed to indemnify the
Underwriters contained in Section 8 of the Underwriting Agreement between the
Underwriters and the Company, dated as of _______________, 2006. The Holder(s)
of the Registrable Securities to be sold pursuant to such registration
statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, against all loss, claim, damage, expense or liability
(including all reasonable attorneys’ fees and other expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement
to
the same extent and with the same effect as the provisions contained in Section
8 of the Underwriting Agreement pursuant to which the Underwriters have agreed
to indemnify the Company.
Section
5.3.2 Exercise
of Purchase Options.
Nothing
contained in this Purchase Option shall be construed as requiring the Holder(s)
to exercise their Purchase Options prior to or after the initial filing of
any
registration statement or the effectiveness thereof.
Section
5.3.3 Documents
Delivered to Holders.
The
Company shall furnish to each Holder participating in any of the foregoing
offerings and to each underwriter of any such offering, if any, a signed
counterpart, addressed to such Holder or underwriter, of: (i) an opinion of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an opinion
dated the date of the closing under any underwriting agreement related thereto),
and (ii) a “cold comfort” letter dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
a
letter dated the date of the closing under the underwriting agreement) signed
by
the independent public accountants who have issued a report on the Company’s
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants’ letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer’s counsel
and in accountants’ letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to each Holder
participating in the offering requesting the correspondence and memoranda
described below and to the managing underwriter, if any, copies of all
correspondence between the SEC and the Company, its counsel or auditors and
all
memoranda relating to discussions with the SEC or its staff with respect to
the
registration statement and permit each Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the National
Association of Securities Dealers, Inc. (“NASD”).
Such
investigation shall include access to books, records and properties and
opportunities to discuss the business of the Company with its officers and
independent auditors, all to such reasonable extent and at such reasonable
times
as any such Holder shall reasonably request.
Section
5.3.4 Underwriting
Agreement.
The
Company shall enter into an underwriting agreement with the managing
underwriter(s), if any, selected by any Holders whose Registrable Securities
are
being registered pursuant to this Section 5, which managing underwriter shall
be
reasonably satisfactory to the Company. Such agreement shall be reasonably
satisfactory in form and substance to the Company, each Holder and such managing
underwriters, and shall contain such representations, warranties and covenants
by the Company and such other terms as are customarily contained in agreements
of that type used by the managing underwriter. The Holders shall be parties
to
any underwriting agreement relating to an underwritten sale of their Registrable
Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties
to
or agreements with the Company or the underwriters except as they may relate
to
such Holders, their Shares and their intended methods of
distribution.
Section
5.3.5 Documents
to be Delivered by Xxxxxx(s).
Each of
the Holder(s) participating in any of the foregoing offerings shall furnish
to
the Company a completed and executed questionnaire provided by the Company
requesting information customarily sought of selling
securityholders.
Section
5.3.6 Damages.
Should
the registration or the effectiveness thereof required by Sections 5.1 and
5.2
hereof be delayed by the Company or the Company otherwise fails to comply with
such provisions, the Holder(s) shall, in addition to any other legal or other
relief available to the Holder(s), be entitled to obtain specific performance
or
other equitable (including injunctive) relief against the threatened breach
of
such provisions or the continuation of any such breach, without the necessity
of
proving actual damages and without the necessity of posting bond or other
security.
Section
6. Adjustments.
Section
6.1 Adjustments
to Exercise Price and Number of Securities.
The
Exercise Price and the number of Shares underlying the Purchase Option shall
be
subject to adjustment from time to time as hereinafter set forth:
Section
6.1.1 Stock
Dividends - Recapitalization, Reclassification, Split-Ups.
If
after the date hereof, and subject to the provisions of Section 6.2 below,
the number of outstanding Shares is increased by a stock dividend payable in
Shares or by a split-up, recapitalization or reclassification of Shares or
other
similar event, then, on the effective date thereof, the number of Shares
issuable on exercise of the Purchase Option shall be increased in proportion
to
such increase in outstanding Shares.
Section
6.1.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 6.2, the
number of outstanding Shares is decreased by a consolidation, combination or
reclassification of Shares or other similar event, then, upon the effective
date
thereof, the number of Shares issuable on exercise of the Purchase Option shall
be decreased in proportion to such decrease in outstanding Shares.
Section
6.1.3 Adjustments
in Exercise Price.
Whenever the number of Shares purchasable upon the exercise of this Purchase
Option is adjusted, as provided in this Section 6.1, the Exercise Price
shall be adjusted (to the nearest cent) by multiplying such Exercise Price
immediately prior to such adjustment by a fraction: (x) the numerator of
which shall be the number of Shares purchasable upon the exercise of this
Purchase Option immediately prior to such adjustment, and (y) the
denominator of which shall be the number of Shares so purchasable immediately
thereafter.
Section
6.1.4 Replacement
of Securities upon Reorganization, Merger, etc.
In case
of any reclassification or reorganization of the outstanding Shares other than
a
change covered by Section 6.1.1 hereof or which solely affects the par
value of such Shares, or in the case of any merger or consolidation of the
Company with or into another corporation or any other entity (other than a
consolidation or merger in which the Company is the continuing corporation
and
which does not result in any reclassification or reorganization of the
outstanding Shares), or in the case of any sale or conveyance to another
corporation or any other entity of the property of the Company as an entirety
or
substantially as an entirety in connection with which the Company is dissolved,
the Holder of this Purchase Option shall have the right thereafter (until the
expiration of the right of exercise of this Purchase Option) to receive upon
the
exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of Shares or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or other transfer, by a Holder of the number of Shares obtainable
upon
exercise of this Purchase Option immediately prior to such event; and if any
reclassification also results in a change in Shares covered by
Section 6.1.1, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.3 and this Section 6.1.4. The provisions of this
Section 6.1.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
Section
6.1.5 Changes
in Form of Purchase Option.
This
form of Purchase Option need not be changed because of any change pursuant
to
this Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of Shares as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to a prior adjustment
or the computation thereof.
Section
6.2 Elimination
of Fractional Interests.
The
Company shall not be required to issue certificates representing fractions
of
Shares upon the exercise or transfer of the Purchase Option, nor shall it be
required to issue scrip or pay cash in lieu of any fractional interests, it
being the intent of the parties that all fractional interests shall be
eliminated by rounding any fraction up or down to the nearest whole number
of
Shares.
Section
7. Reservation
and Listing.
The
Company shall at all times reserve and keep available out of its authorized
Shares, solely for the purpose of issuance upon exercise of the Purchase Option,
such number of Shares or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that,
upon
exercise of the Purchase Option and payment of the Exercise Price therefor,
all
Shares and other securities issuable upon such exercise shall be duly and
validly issued, fully paid and non-assessable and not subject to preemptive
rights of any shareholder. As long as the Purchase Option shall be outstanding,
the Company shall use its best efforts to cause all Shares issuable upon
exercise of the Purchase Option to be listed (subject to official notice of
issuance) on all securities exchanges (or, if applicable on Nasdaq) on which
the
ordinary shares of the Company (the “Ordinary
Shares”)
issued
to the public pursuant to the Registration Statement are then listed and/or
quoted.
Section
8. Certain
Notice Requirements.
Section
8.1 Holder’s
Right to Receive Notice.
Nothing
herein shall be construed as conferring upon the Holders the right to vote
or
consent or to receive notice as a shareholder for the election of directors
or
any other matter, or as having any rights whatsoever as a shareholder of the
Company. If, however, at any time prior to the expiration of the Purchase Option
and their exercise, any of the events described in Section 8.2 hereof shall
occur, then, in one or more of said events, the Company shall give written
notice of such event at least fifteen (15) days prior to the date fixed as
a
record date or the date of closing the transfer books for the determination
of
the shareholders entitled to such dividend, distribution, conversion or exchange
of securities or subscription rights, or entitled to vote on such proposed
dissolution, liquidation, winding up or sale. Such notice shall specify such
record date or the date of the closing of the transfer books, as the case may
be.
Section
8.2 Events
Requiring Notice.
The
Company shall be required to give the notice described in this Section 8 upon
one or more of the following events: (i) if the Company shall take a record
of
the holders of its Ordinary Shares for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a cash dividend
or
distribution payable otherwise than out of retained earnings, as indicated
by
the accounting treatment of such dividend or distribution on the books of the
Company, or (ii) the Company shall offer to all the holders of its Ordinary
Shares any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company,
or
any option, right or warrant to subscribe therefor, or (iii) merger,
combination, consolidation, stock acquisition, dissolution, liquidation or
winding up of the Company or a sale of all or substantially all of its property,
assets and business shall be proposed.
Section
8.3 Notice
of Change in Exercise Price.
The
Company shall, promptly after an event requiring a change in the Exercise Price
pursuant to Section 6 hereof, send notice to the Holders of such event and
change (“Price
Notice”).
The
Price Notice shall describe the event causing the change and the method of
calculating same and shall be certified as being true and accurate by the
Company’s President and Chief Financial Officer.
Section
8.4 Transmittal
of Notices.
Any
notice, demand, request or other communication required or permitted under
this
Purchase Option shall be in writing and shall be deemed to have been duly given
if personally delivered or mailed by reputable overnight courier or delivered
by
facsimile transmission, to the Company at the address set forth in the Company’s
filings with the SEC or its facsimile number (_____________) or to the Holder
at
its address or facsimile number set forth in the records of the Company. Any
party hereto may by notice so given change its address for future notice
hereunder. Notice shall conclusively be deemed to have been given when
personally delivered or when deposited in the mail in the manner set forth
above
and shall be deemed to have been received when delivered or, if notice is given
by facsimile transmission, when delivered with confirmation of
receipt.
Section
9. Miscellaneous.
Section
9.1 Amendments.
The
Company and Maxim Partners LLC may from time to time supplement or amend this
Purchase Option without the approval of any of the Holders of any portion of
this Purchase Option in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with
any
other provisions herein, or to make any other provisions in regard to matters
or
questions arising hereunder which the Company and the Underwriters may deem
necessary or desirable and which the Company and the Underwriters deem shall
not
adversely affect the interest of the Holders. All other modifications or
amendments shall require the written consent of the party against whom
enforcement of the modification or amendment is sought.
Section
9.2 Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Purchase Option.
Section
9.3 Entire
Agreement.
This
Purchase Option (together annexes hereto) constitutes the entire agreement
of
the parties hereto with respect to the subject matter hereof, and supersedes
all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
Section
9.4 Binding
Effect.
This
Purchase Option shall inure solely to the benefit of and shall be binding upon,
the Holder and the Company and their respective successors, legal
representatives and assigns, and no other person shall have or be construed
to
have any legal or equitable right, remedy or claim under or in respect of or
by
virtue of this Purchase Option or any provisions herein contained.
Section
9.5 Governing
Law; Submission to Jurisdiction.
This
Purchase Option and the transactions contemplated hereby shall be governed
as to
validity, interpretation, construction, effect, and in all other respects by
the
laws of the State of New York pursuant to Section 5-1401 of the New York General
Obligations Law, without regard to the conflicts of laws principals thereof
(other than Section 5-1401 of The New York General Obligations Law). The
Company: (a) agrees that any legal suit, action or proceeding arising out of
or
relating to this Purchase Option and/or the transactions contemplated hereby
shall be instituted exclusively in the Supreme Court of the State of New York,
New York County, or in the United States District Court for the Southern
District of New York, (b) waives any objection which it may have or hereafter
to
the venue of any such suit, action or proceeding, and (c) irrevocably consents
to the jurisdiction of Supreme Court of the State of New York, New York County,
or in the United States District Court for the Southern District of New York
in
any such suit, action or proceeding. The Company has appointed CT Corporation
Systems as its authorized agent (the “Authorized
Agent”)
upon
whom process may be served in any suit, action or proceeding arising out of
or
based upon this Purchase Option or the transactions contemplated herein which
may be instituted in any New York Court, by the Holder or by any person who
controls any Underwriter, and expressly accepts the exclusive jurisdiction
of
any such court in respect of any such suit, action or proceeding. The Company
hereby represents and warrants that the Authorized Agent has accepted such
appointment and has agreed to act as said agent for service of process, and
the
Company agrees to take any and all action, including the filing of any and
all
documents that may be necessary to continue such appointment in full force
and
effect as aforesaid. Service of process upon the Authorized Agent shall be
deemed, in every respect, effective service of process upon the Company.
Notwithstanding the foregoing, the Company hereby agrees to the exclusive
jurisdiction of the Supreme Court of the State of New York, New York County,
or
in the United States District Court for the Southern District of New York in
connection with any action brought by them arising out of or based upon this
Purchase Option. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS)
HEREBY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CLAIM
BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS PURCHASE OPTION AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
9.6 Waiver,
etc.
The
failure of the Company or the Holder to at any time enforce any of the
provisions of this Purchase Option shall not be deemed or construed to be a
waiver of any such provision, nor to in any way affect the validity of this
Purchase Option or any provision hereof or the right of the Company or any
Holder to thereafter enforce each and every provision of this Purchase Option.
No waiver of any breach, non-compliance or non-fulfillment of any of the
provisions of this Purchase Option shall be effective unless set forth in a
written instrument executed by the party or parties against whom or which
enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver
of
any other or subsequent breach, non-compliance or non-fulfillment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by
its
duly authorized officer as of the ____________ day of _________________,
2006.
|
FUWEI
FILMS (HOLDINGS) CO., LTD.
|
||
| |
|
|
| Date: | By: | /s/ |
|
Name:
|
||
| Title | ||
ANNEX
I
Form
to be used to exercise Purchase Option
Fuwei
Films (Holdings) Co., Ltd.
Date:_________________,
200__
The
undersigned hereby elects irrevocably to exercise the within Purchase Option
and
to purchase ____ Ordinary Shares of Fuwei Films (Holdings) Co., Ltd. and hereby
makes payment of $____________ (at the rate of $_________ per share) in payment
of the Exercise Price pursuant thereto. Please issue the Share as to which
this
Purchase Option is exercised in accordance with the instructions given
below.
or
The
undersigned hereby elects irrevocably to exercise the within Purchase Option
and
to purchase _________ Ordinary Shares of Fuwei Films (Holdings) Co., Ltd. by
surrender of the unexercised portion of the within Purchase Option (with a
“Value” of $_______ based on a “Market Price” of $__________. Please issue the
Shares as to which this Purchase Option is exercised in accordance with the
instructions given below.
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
|
|
|
|
|
NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within Purchase Option in every particular without alteration or
enlargement or any change whatsoever.
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
|
|
|
|
Name
|
|
|
|
(Print
in Block Letters)
|
|
|
|
|
Address
|
|
|
|
|
ANNEX
II
Form
to be used to assign Purchase Option
ASSIGNMENT
(To
be
executed by the registered Holder to effect a transfer of the within Purchase
Option):
FOR
VALUE
RECEIVED,__________________________________ does hereby sell, assign and
transfer unto _______________________ the right to purchase
_______________________ Ordinary Shares of Fuwei Films (Holdings) Co., Ltd.
(“Company”) evidenced by the within Purchase Option and does hereby authorize
the Company to transfer such right on the books of the Company.
Dated:___________________,
200_
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature |
|
|
|
|
|
|
|
Signature Guaranteed |
|
|
|
|
|
|
|
NOTICE:
The signature to this form must correspond with the name as written upon the
face of the within Purchase Option in every particular without alteration or
enlargement or any change whatsoever, and must be guaranteed by a bank, other
than a savings bank, or by a trust company or by a firm having membership on
a
registered national securities exchange.
