PERSONAL AND CONFIDENTIAL
PERSONAL AND
CONFIDENTIAL
December
13, 2010
Cathay
Plastic Limited (BVI)
x/x Xxx
Xxxxxxx Xxxxxxxxxx, Xxx.
00/X, Xx.
Xxxx’s Xxxx.
00 Xxxxxx
Xxxx
Xxxxxxx,
Xxxx Xxxx
Ladies
and Gentlemen:
This
letter agreement references ordinary shares of GSME Acquisition Partners I (the
“Company”)
acquired by Cathay (as defined below) pursuant to that certain Amended and
Restated Agreement and Plan of Reorganization, as amended (the “Merger Agreement”),
dated as of September 13, 2010, by and among GSME Acquisition Partners I Sub
Limited, Plastec International Holdings Limited (“Plastec”), Sun Yip
Industrial Company Limited (BVI), Tiger Power Industries Limited (BVI), Expert
Rank Limited (BVI), Fine Colour Limited (BVI), Cathay Plastic Limited (BVI)
(“Cathay”),
Greatest Sino Holdings Limited (BVI), Colourful Asia International Limited (BVI)
and Top Universe Management Limited (BVI) pursuant to which Plastec will become
a wholly-owned subsidiary of the Company. Capitalized terms used but
not defined herein shall have the meaning assigned to them in the Merger
Agreement.
The
undersigned, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, hereby agrees as follows:
1.
Effective on the Closing Date (a) Cathay hereby grants to Mr Kin Sun Sze-To
(“Sze-To”) the
right, but not the obligation, (the “Call Option”) to buy
from Cathay, and to require Cathay to sell, up to 1,570,000 GSME Shares, as
adjusted as set forth below (the “Call Option Shares”)
at an exercise price per share equal to US$12.50, as adjusted as set forth below
(the “Call Exercise
Price”) and (b) Sze-To hereby grants to Cathay the right, but not the
obligation, (the “Put
Option”, and with the Call Option, the “Options”) to sell to
Sze-To, and to require Sze-To to buy, up to 1,570,000 GSME Shares, as adjusted
as set forth below (the “Put Option Shares”,
and with the Call Option Shares, the “Option Shares”) at an
exercise price per share equal to US$7.50, as adjusted as set forth below (the
“Put Exercise
Price”, and with the Call Exercise Price, the “Exercise
Prices”). The Call Option and the Put Option shall be subject
to the following terms, as applicable:
(a) Exercise Period. The
Call Option shall be exercisable, in whole or in part, at any time or from time
to time, commencing on November 25, 2011 through and including December 2, 2011
(the “Call
Period”). If
the Call Option is not exercised in full, the Put Option shall be exercisable,
in whole or in part, with respect to the number of Put Option Shares equal to
the difference between 1,570,000 (as adjusted pursuant to Section 1(d) below)
and the number of Option Shares (if any) purchased pursuant to the Call Option,
at any time or from time to time, commencing on December 3, 2011 through and
including December 10, 2011 (the “Put
Period”).
(b) Exercise Price
Adjustments. If the greater of (i) the simple average closing
price of GSME Shares for the 90 trading days preceding November 25, 2011 (the
“Adjustment
Period”) and (ii) the volume weighted average closing price of GSME
Shares for the Adjustment Period is equal to or greater than US$10, the Call
Exercise Price shall adjust to US$12 and the Put Exercise Price shall adjust to
US$8. The Exercise Prices and the number of Option Shares also will
be subject to proportional adjustment for stock splits, stock dividends,
reorganizations, combinations, consolidations, stock distributions,
recapitalizations and the like.
(c) Option Shares
Adjustment. If Cathay sells any GSME Shares after the Closing
but prior to November 25, 2011, the number of (i) Call Option Shares that may be
purchased pursuant to the Call Option and (ii) Put Option Shares that may be
sold pursuant to the Put Option shall each be reduced, on a one for one basis,
by the number of GSME Shares sold by Cathay (but in no event below
zero).
(d) Dividends. In the
event that (i) Option Shares are transferred from Cathay to Sze-To pursuant to
the terms of this Letter Agreement and (ii) after the date on which Option
Shares are transferred from Cathay to Sze-To, the Company pays dividends on the
GSME Shares that relate to the Company’s performance in Fiscal Year 2012
(regardless of whether such dividends are declared in Fiscal Year 2012 or Fiscal
Year 2013) and solely with respect to each Option Share transferred from Cathay
to Sze-To pursuant to the exercise of one, or both, of the Options, upon
receiving such dividends Sze-To shall pay to Cathay, in immediately available
funds an amount equal to the product of (I) the dollar amount of the dividend
per GSME Share multiplied by (II) a fraction, the numerator of which is the
number of calendar days in Fiscal Year 2012 in which Cathay held such GSME Share
and the denominator of which is the number of calendar days in Fiscal Year
2012.
(e) Manner of Exercise – Call
Option. Sze-To may exercise the Call Option at any time during the Call
Period by delivering a notice of exercise in writing to Cathay at the address
set forth below that includes the number of Call Option Shares to be purchased,
the applicable Exercise Price and the aggregate Exercise Price (the “Call Notice of
Exercise”). Once delivered, such Call Notice of Exercise shall be
irrevocable.
(f) Manner of Exercise – Put
Option. Cathay may exercise the Put Option at any time during the Put
Period by delivering a notice of exercise in writing to Sze-To at the address
set forth below that includes the number of Put Option Shares to be sold, the
applicable Exercise Price and the aggregate Exercise Price (the “Put Notice of
Exercise”). Once delivered, such Put Option Notice of Exercise shall be
irrevocable.
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(g) Closing. In the event
that (i) Sze-To exercises the Call Option or (ii) Cathay exercises the Put
Option, in each case, in accordance with the terms of this letter agreement,
Cathay shall sell and transfer the applicable number of Option Shares to Sze-To,
and Sze-To shall purchase and accept such Option Shares from
Cathay. The purchase and sale of the applicable Option Shares (the
“Closing”)
shall take place at the office of Cathay Plastic Limited (BVI) located at 14/F,
St. John’s Xxxx., 00 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx on the date that is 10 days
(or the closest Business Day thereafter) following the date on which Sze-To
delivered a Call Notice of Exercise or Cathay delivered a Put Notice of
Exercise, as applicable. At the Closing, (i) Cathay shall deliver duly endorsed
stock certificates, stock powers and/or such other documents as Sze-To may
reasonably request to effectuate such transfer and (ii) Sze-To shall pay the
aggregate Exercise Price in cash, by certified check or by wire transfer to an
account designated in writing by Cathay. The Closing shall occur upon
payment of the aggregate Exercise Price in respect of the purchased Option
Shares against delivery of such purchased Option Shares.
(h) Transfer. The Options
shall not be transferable without the prior written consent of the other
party.
2.
All covenants and other agreements contained in this letter agreement by or on
behalf of either of the parties hereto bind and inure to the benefit of their
respective successors and permitted assigns whether so expressed or not; provided, however, that neither
party may assign its rights or obligations under this letter agreement. The
undersigned and any of their respective successors and assigns are entitled to
enforce the provisions of this letter agreement and enjoy the benefits
hereof.
3.
Each of the undersigned hereby irrevocably waives, to the extent it may do so
under applicable law, any defense based on the adequacy of a remedy at law that
may be asserted as a bar to the remedy of specific performance in any action
brought against either party for specific performance of this letter agreement
by the other party or any of its successors and assigns.
4.
The execution and delivery of this letter agreement by the parties hereto is in
reliance upon each party’s agreement and acknowledgment that in the event the
grant of the Options and/or the sale and purchase of the Option Shares as a
result of the exercise of the Options shall have resulted in the breach of
any of the representations, warranties and covenants of the Plastec Shareholders
contained in the Merger Agreement, neither party shall take any action or claim
any damages or compensation against any other party to the Merger Agreement as a
result of such breach. Notwithstanding anything to the contrary in
the foregoing, neither party’s interests under this letter agreement or the
validity and enforceability of the Options or the Option Shares shall be
adversely affected as a result of any such breach.
5.
Except with the prior written consent of the other party, neither party to this
letter agreement will disclose the existence or the terms of this letter
agreement or the transactions contemplated hereby with any Person (other than to
such party’s Affiliates, investors, officers, directors and advisors) unless
such disclosure is required by, and made pursuant to, applicable laws and
regulations or court orders.
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6.
This letter agreement shall be binding upon the parties hereto and be governed
by and construed in accordance with the laws of the State of New
York. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America located in the
State of New York for any action, suit or proceeding arising out of or relating
to this letter agreement and the transactions contemplated by this letter
agreement (and agrees not to commence any action, suit or proceeding relating
thereto except in such courts). Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this letter agreement in the
courts of the State of New York or the United States of America located in New
York, and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
7.
This letter agreement may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one and the same letter agreement.
[Signature Page Follows]
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Sincerely,
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KIN
SUN SZE-TO
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Address:
|
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Mr.
Kin Sun Sze-To
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c/o
Plastec International Holdings Limited
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Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx
|
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00
Xxx Xxxx Road, Xxxx Xxxx
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Kowloon,
Hong
Kong
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ACCEPTED AND AGREED:
CATHAY
PLASTIC LIMITED (BVI)
By:
_______________________________
Name:
Title:
Address:
Cathay
Plastic Limited (BVI)
x/x Xxx
Xxxxxxx Xxxxxxxxxx, Xxx.
00/X, Xx.
Xxxx’s Xxxx.
00 Xxxxxx
Xxxx
Xxxxxxx,
Xxxx Xxxx
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