CALL OPTION AGREEMENT
Exhibit
10.6
This CALL
OPTION AGREEMENT (this “Agreement”) is made and entered into as of June 27, 2008
(the “Effective Date”), between Xxxxxx Xxx, a resident of the People’s Republic
of China (“Purchaser”) and Xxxx Xxx, a resident of San Mateo, California
(“Seller”). Purchaser and Seller are also referred to herein together as the
“Parties” and individually as a “Party”.
RECITALS
WHEREAS,
pursuant to a Share Purchase Agreement, dated as of the date hereof, among Xxx
Distributing, Inc., a Nevada Corporation (the “Company”) and the shareholder of
Armco & Metawise (HK) Limited, a Hong Kong Limited Liability Company
(“Armco”) (the “Share Purchase Agreement”), the Company acquired 100% of the
issued and outstanding capital stock of Armco; and
WHEREAS,
Purchaser has agreed with Seller, as a condition to his continuing to provide
services to Xxxxx (Lianyungang) Scraps
Co., Ltd. (“Xxxxx”) and Henan Armco & Metawise Trading Co., Ltd. (“Henan
Armco”), both of which are PRC companies that are wholly owned subsidiaries of
Armco, as its Chairman and Chief Executive Officer, to enter into this Agreement
(Xxxxx and Henan Armco are collectively referred to hereinafter as the “Armco
Subsidiaries”); and
WHEREAS,
Seller has the right to purchase 5,300,000 shares of the Company’s $0.001 par
value per share common stock (“Common Stock”) and therefore, has determined that
it is in her best interest to, and will receive benefits from, Purchaser’s
performance as CEO and Chairman of the Armco Subsidiaries and entered into the
Share Purchase Agreement based on the possibility of such benefits;
and
WHEREAS,
Seller desires to grant to Purchaser an option to acquire 5,300,000 shares of
the Company’s Common Stock owned by her (“Seller’s Shares”) pursuant to the
terms and conditions set forth in this Agreement.
NOW,
THEREFORE, the Parties, in consideration of the foregoing premises and the
terms, covenants and conditions set forth below, and other good and valuable
consideration, receipt of which is acknowledged, hereby agree as
follows:
1. 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.
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“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, $0.001 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 entry by Purchaser and the Armco Subsidiaries into a binding
employment agreement for a term of not less than three (3) years for Purchaser
to serve as Armco Subsidiaries’ Chief Executive Officer and Chairman of its
Board of Directors.
“Condition
2” means the United States Securities and Exchange Commission declaring a
registration statement filed by the Company under the Securities Act of 1933
effective, or, investors who purchase Common Stock from the Company pursuant to
a Securities Purchase Agreement to be entered into after the closing of the
Share Purchase Agreement being able to sell their Common Stock under Rule 144,
as then effective under the U.S. Securities Act of 1933, as
amended.
“Condition
3” means Armco and its Subsidiaries achieving not less than $5,000,000 in
pre-tax profits, as determined under United States Generally Accepted Accounting
Principles consistently applied (“US GAAP”) for the calendar year ending
December 31, 2008.
“Condition
4” means Armco and its Subsidiaries achieving not less than $75,000,000 in Gross
Revenues, as determined under US GAAP for the calendar year ending December 31,
2008.
“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.
“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.
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“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.
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.
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 Purchaser, a portion of the Seller’s Shares identified in the Call Exercise
Notice (the “Call Right”). Purchaser shall be permitted to purchase, and Seller
shall be obligated to sell, the following numbers of Seller’s Shares upon the
attainment of the following Conditions:
Condition Number of Seller’s Shares as
to which there is a Call Right
Condition
1 1,325,000
Condition
2 1,325,000
Condition
3 1,325,000
Condition
4 1,325,000
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 hereof (such date or the earlier expiration of the Call Right is referred
to herein as the “Expiration Date”).
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2.3.
Exercise
Process. In order to exercise the Call Right during the Exercise Period,
Purchaser 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 set forth therein. The Call
Exercise Notice shall indicate the number of Seller’s Shares as to which
Purchaser is then exercising its Call Right and the aggregate Call Price.
Provided the Call Exercise Notice is delivered in accordance with Section 7.4 to
Seller on or prior to 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. (U.S. Pacific time) on any day or on a date 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 Purchaser to purchase, and (b) on the part of
Seller to sell, the Seller’s Shares subject to such Call Exercise Notice in
accordance with the terms of this Agreement.
2.4.
Call Price. If
the Call Right is exercised pursuant to this Section 2, as payment for the
Seller’s Shares being purchased by Purchaser pursuant to the Call Right,
Purchaser shall pay the aggregate Call Price to the Seller (but no later than
fifteen (15) Business Days of the Exercise Date).
3. ENCUMBRANCES; TRANSFERS,
SET-OFF AND WITHHOLDINGS.
3.1. Encumbrances. Upon
exercise of the Call Right, Seller’s Shares being purchased shall be sold,
transferred and delivered to 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, Seller shall continue to own, free and clear of any
hypothecation, pledge, mortgage or other encumbrance, except pursuant to this
Agreement and except for the benefit of the Purchaser, such amount of the
Seller’s Shares as may be required from time to time to in order for Purchaser
to exercise its Call Right in full.
3.3. Set-off. Purchaser
shall be absolutely entitled to receive all Seller’s Shares subject to the
exercise of a Call Right, and for the purposes of this Agreement, Seller hereby
waives, as against Purchaser, all rights of set-off or counterclaim that would
or might otherwise be available to Seller.
3.4 Escrow of Seller’s
Shares.
(a) Upon
execution of this Agreement, Seller shall deliver to the Company, as Collateral
Agent (the “Collateral Agent”), a certificate or certificates representing
Seller’s Shares. The certificates representing the Seller’s Shares (together
with duly executed stock powers in blank) shall be held by the Collateral
Agent.
(b) Upon
receipt of a Call Exercise Notice, the Collateral Agent shall promptly deliver
the Seller’s Shares being purchased pursuant to such Call Exercise Notice in
accordance with the instructions set forth therein. In the event that the
Collateral Agent shall receive notice from the Parties that the Conditions have
not been met, the Seller’s Shares shall be distributed in accordance with their
instructions.
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4. REPRESENTATIONS AND
WARRANTIES.
4.1.
Representations and
Warranties by Seller. Seller represents and warrants to Purchaser,
that:
(a) Due Authorization.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary action on the part of Seller. This Agreement, and
all agreements and documents executed and delivered pursuant to this Agreement,
constitute valid and binding obligations of Seller, enforceable against 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. The
execution or delivery of this Agreement by Seller nor the fulfillment or
compliance by 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 Seller or compliance with the provisions hereof
by the Seller does not, and shall not, violate any provision of any Law to which
the Seller is subject or by which Seller is bound.
(c) No Actions. There are
no lawsuits, actions (or to the best knowledge of Seller, investigations),
claims or demands or other proceedings pending or, to the best of the knowledge
of 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 Seller’s obligations set forth in this Agreement.
(d) Title. 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 Seller’s Shares free an clean of any encumbrance, except as
contemplated by this Agreement.
4.2 Representations and
Warranties by Purchaser. Purchaser represents and warrants to the
Sellers, that:
(a) Due Authorization.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary action on the part of Purchaser. This Agreement, and
all agreements and documents executed and delivered pursuant to this Agreement,
constitute valid and binding obligations of Purchaser, enforceable against
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.
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(b) No Conflicts. The
execution or delivery of this Agreement by Purchaser nor the fulfillment or
compliance by 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 Purchaser or compliance with the provisions
hereof by Purchaser does not, and shall not, violate any provision of any Law to
which Purchaser is subject or by which Purchaser is bound.
(c) No Actions. There are
no lawsuits, actions (or to the best knowledge of Purchaser, investigations),
claims or demands or other proceedings pending or, to the best of the knowledge
of Purchaser, threatened against Purchaser which, if resolved in a manner
adverse to Purchaser, would adversely affect the right or ability of Purchaser
to carry out Purchaser’s obligations set forth in this Agreement.
5. EVENTS OF DEFAULT AND
TERMINATION
5.1 Events of Default.
The occurrence at any time with respect to a Party (the “Defaulting Party”) of
any of the following events shall constitute an event of default (an “Event of
Default”) with respect to such party:
(a) Failure to Pay or
Deliver. The failure by a Party to make, when due, any payment under this
Agreement or 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 Defaulting Party;
(b) Breach of Agreement.
The failure by a Party to comply with or perform any agreement, covenant or
obligation (other than a failure described in Section 5.1(a)) to be complied
with or performed by such Party in accordance with this Agreement if such
failure is not remedied on or before the tenth Business Day after notice of such
failure is given to the Defaulting Party; or
(c) Bankruptcy. A Party
(1) becomes insolvent or is unable to pay its debts or fails or admits in
writing its inability generally to pay its debts as they become due; (2) makes a
general assignment, arrangement or composition with or for the benefit of its
creditors; (3) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any relief under any Bankruptcy Law, or
a petition is presented for its winding-up or liquidation, and in the case of
any such proceeding or petition instituted or presented against it, such
proceeding or petition (A) results in a judgment of insolvency or bankruptcy or
the entry of an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained in each
case within 30 days of the institution or presentation thereof; (4) has a
secured party take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such
secured party maintains possession, or any such process is not dismissed,
discharged, stayed or rescinded, in each case within 30 days thereafter; or (5)
takes any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing acts.
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5.2 Termination and Remedies
Upon Default. If at any time an Event of Default with respect to a Party
has occurred and is continuing, the other party may terminate this Agreement and
deem the Expiration Date to have occurred by giving written notice to the
Defaulting Party specifying the relevant Event of Default. In
no event shall the Party exercising its right under this Section be precluded by
the exercise of such termination right from pursuing, subject to the terms of
this Agreement and applicable law, any cause of action or other claim it may
then or at any time thereafter have against the other Party in respect of any
Event of Default by the other Party hereunder including the remedy of specific
performance.
6. INDEMNIFICATION.
6.1 Indemnity by the
Seller. The Seller agrees to indemnify and hold the Buyer
harmless from all Buyer Indemnified Liabilities. For this purpose,
“Buyer Indemnified Liabilities” shall mean all suits, proceedings, claims,
expenses, losses, costs, liabilities, judgments, deficiencies, assessments,
actions, investigations, penalties, fines, settlements, interest and damages
(including reasonable attorneys’ fees and expenses), whether suit is instituted
or not and, if instituted, whether at any trial or appellate level, and whether
raised by the parties hereto or a third party, incurred or suffered by the Buyer
or any of them arising from, in connection with or as a result of any default or
breach in the performance of any of the covenants or agreements made by the
Seller in or pursuant to this Agreement.
6.2 Indemnity by the
Buyer. The Buyer agrees that it will indemnify and hold the
Seller from all Seller Indemnified Liabilities. For this purpose,
“Seller Indemnified Liabilities” incurred by the Seller means all suits,
proceedings, claims, expenses, losses, costs, liabilities, judgments,
deficiencies, personal income taxes of Seller incurred by Seller in connection
with the purchase of the Seller’s Shares from the Company and the sale of such
shares to Purchaser under this Agreement, assessments, actions, investigations,
penalties, fines, settlements, interest and damages (including reasonable
attorneys’ fees and expenses), whether suit is instituted or not and, if
instituted, whether at any trial or appellate level, and whether raised by the
parties hereto or a third party, incurred or suffered by the Seller, arising
from, in connection with or as a result of (a) Seller’s performance of its
obligations under this Agreement and the Share Purchase Agreement; or (b) any
default or breach in the performance of any of the covenants or agreements made
by the Buyer in this Agreement.
6.3 Procedure for
Indemnification. In the event any Party makes any demand or
claim under this Section 6, the indemnified party shall give written notice to
the indemnifying party promptly upon becoming aware of any event giving rise to
a claim for indemnification. In such event, the indemnifying party
shall assume full control of the defense thereof and hire counsel (which counsel
shall be reasonably satisfactory to the indemnified party) to defend any such
demand, claim or lawsuit (provided, however, that the failure to give such
Notice shall not relieve the indemnifying party of its obligations hereunder
unless such party is prejudiced by such failure). The indemnified
party shall be permitted to participate in such defense at its sole cost and
expense.
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7. MISCELLANEOUS.
7.1.
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 Florida,
without reference to any conflict of laws principle that would cause the
application of the laws of any jurisdiction other than Florida. Each Party
hereby irrevocably submits to the exclusive jurisdiction of the federal and
state courts in Broward County, Florida, 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.
7.2.
Successors and
Assigns. Each of the Parties shall not 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.
7.3.
Entire Agreement;
Amendment. This Agreement constitutes the full and entire understanding
and agreement between 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.
7.4.
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 as follows:
To
Purchaser at:
Xx. 0000,
00 Xxxxx, Xx.0 Xxxxxxxx
Xx.00
Jing San Road
Jin Shui
District, Xxxxx Xxxx City, China
Fax: 00-000-00000000
To Seller
at:
Xxxx
Xxx
0000
Xxxxxxxxx Xx
Xxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
or to
such other address or facsimile number as a party may have specified to the
other parties in writing delivered in accordance with this Section
7.4.
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7.5.
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.
7.6.
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.
7.7 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.
7.8.
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.
7.9.
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.
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IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
|
Purchaser:
/s/
Xxxxxx Xxx
Xxxxxx
Xxx
|
Seller:
/s/
Xxxx Xxx
Xxxx
Xxx
|
Acknowledged
and agreed to:
Collateral
Agent:
Xxx
Distributing, Inc., as Collateral Agent
By: /s/
Xxxxxxx X. Xxx
Name:
Xxxxxxx X. Xxx
Title:
Chief Executive Officer
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APPENDIX
A
Form of
Call Exercise Notice
[Date]
Xxxx Xxx
(“Seller”)
0000
Xxxxxxxxx Xx
Xxxxxx
Xxxx, XX 00000
Re: Call
Option Agreement dated June __, 2008 (the “Call Option Agreement”), between
Xxxxxx Xxx (“Purchaser”) and Xxxx Xxx (“Seller”).
Dear Xx.
Xxx:
In
accordance with Section 2.3 of the Call Option Agreement, Purchaser hereby
provides this notice of exercise of the Call Right in the manner specified
below:
(a) The
Purchaser hereby exercises its Call Rights with respect to Seller’s Shares
pursuant to the Call Option Agreement.
(b) The
Purchaser intends that payment of the Call Exercise Price shall be made as a
Cash Exercise and shall pay the sum of $____________ to the Seller.
(c)
Pursuant to this exercise, the Seller shall deliver to _______________ Seller’s
Shares in accordance with the instructions attached hereto.
Dated:
_______________, ______
_________________________________________
Xxxxxx
Xxx
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