CALL OPTION AGREEMENT BETWEEN Mr. Shao Ganghua AND Mr. Chen Zhong Date: April 14, 2008
BETWEEN
AND
Mr.
▇▇▇▇ ▇▇▇▇▇
Date:
April 14, 2008
THIS
OPTION AGREEMENT (this "Agreement")
is
made on April 14, 2008 by and among ▇▇.
▇▇▇▇
Ganghua, who is neither a citizen nor a resident of the People’s Republic of
China (the
"Transferor")
and
Mr. ▇▇▇▇ ▇▇▇▇▇ of Suite ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
People’s Republic of China, a Chinese citizen with PRC ID No. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
(the
“Transferee”).
The
Transferor and the Transferee are collectively referred to as the "Parties"
and
each of them as a "Party".
Whereas,
the Transferor is the sole shareholder of Kamick
Assets Limited
(the
“Company”), a British Virgin Islands Company, which is the sole shareholder of
Asia Business Management Group Limited, a British Virgin Islands Company, which
intends to complete a reverse merger with Aamaxan Transport Group, Inc., a
public shell company, traded on the Over the Counter Bulletin Board (the
"Listed
Company"),
holding Two (2) shares of Ordinary Shares in the Company as of the date of
this
Agreement.
Whereas,
the Transferee is to have a substantial role in the growth of business
of Shanghai Medical Technology Co. Ltd.., its subsidiaries and Anhante (Beijing)
Medical Technology Co., Ltd (collectively
with the
Company and Asian Business Management Group Limited referred to as the
“Group”).
In
consideration of the Transferee’s anticipated contributions to the Group, the
Transferor has agreed to grant to the Transferee, and the Transferee has agreed
to accept from the Transferor, an option (the “Option”)
to
purchase all of the ordinary shares of the Company currently held by the
Transferor [i.e. Two (2) shares] (the "Option
Shares")
on the
terms and subject to the conditions set out in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree
as
follows:
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1.
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DEFINITIONS
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1.1.
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Defined
Terms
:
In this Agreement (including the Recitals, Exhibits and Schedules),
unless
the context otherwise requires, the following words and expressions
shall
have the following meanings:
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“Alternate
Exercise Price” means
an
exercise price of RMB 200 per share to be paid by the Transferee or his nominee
to the Transferor in respect of the Option Shares issued to the Transferee
or
his nominee in the event that the Performance Targets (as defined herein)
have
not been met by the Group;
"Business
Day"
means a
day (other than Saturdays, Sundays and public holidays) on which banks are
generally open for business in China;
"China"
or
"PRC"
means
the People's Republic of China;
"Completion"
means
the completion of the sale to and purchase by the Transferee of the Option
Shares under this Agreement;
"Completion
Date"
means
the date falling seven (7) Business Days after the service of the Exercise
Notice by the Transferee to the Transferor;
"Distributions"
means
any cash proceeds arising from or in respect of, or in exchange for, or accruing
to or in consequence of the Option Shares from the Effective Date to the
Completion Date, including without limitation, the Dividends.
1
"Dividends"
means
the dividends declared by the Company and accrued in respect of the Option
Shares (whether or not such dividends shall have been paid and received by
the
Transferee or his nominee);
"Effective
Date"
means
the date of this Agreement;
"Exercise"
means
the exercise by the Transferee or his Nominee of the Option pursuant to the
terms of this Agreement;
"Exercise
Notice"
means
the notice substantially in the form set out in Schedule
A;
"Exercise
Price"
means
an exercise price of RMB 100 per share of the Option Shares to be paid by
the
Transferee to the Transferor in respect of the Option Shares issued to such
Transferee if the Group achieves the Performance Targets;
"Nominee"
means
such person nominated by the Transferee in the Transfer Notice to be the
transferee of the Option or Option Shares;
"Option
Effective Dates"
has the
meaning set forth in Clause 2.3;
"Performance
Targets"
has the
meaning set forth in Clause 3;
“Performance
Period”
has the
meaning set forth in Exhibit A to the Agreement;
“Reverse
Merger”
means
the transaction wherein the Listed Company will acquire 100% equity interest
of
Asian Business Management Group Limited and
its
subsidiaries and affiliates;
"RMB"
means
the lawful currency of China;
"Transfer
Notice"
means
the notice substantially in the form set out in Schedule
B;
"US$"
or
"United
States Dollar"
means
the lawful currency of the United States of America.
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1.2.
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Interpretation:
Except to the extent that the context requires
otherwise:
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1.2.1
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words
denoting the singular shall include the plural and vice
versa;
words denoting any gender shall include all genders; words denoting
persons shall include firms and corporations and vice
versa;
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1.2.2
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any
reference to a statutory provision shall include such provision and
any
regulations made in pursuance thereof as from time to time modified
or
re-enacted whether before or after the date of this Agreement and
(so far
as liability thereunder may exist or can arise) shall include also
any
past statutory provisions or regulations (as from time to time modified
or
re-enacted) which such provisions or regulations have directly or
indirectly replaced;
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1.2.3
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the
words "written"
and "in
writing"
include any means of visible reproduction;
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1.2.4
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any
reference to "Clauses",
"Recitals"
and "Schedules"
are to be construed as references to clauses and recitals of, and
schedules to, this Agreement;
and
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2
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1.2.5
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any
reference to a time of day is a reference to China time unless provided
otherwise.
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1.3.
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Headings:
The headings in this Agreement are inserted for convenience only
and shall
be ignored in construing this Agreement.
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2.
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OPTION
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2.1.
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Option:
In consideration of the contributions which the Transferee has made
to the
Group and his continuing commitment to the Group, the Transferor
hereby
irrevocably and unconditionally grants to the Transferee the Option
for
such Transferee to acquire from the Transferor, at the Exercise Price
or
the Alternative Exercise Price, at any time during the Exercise Period
(defined below) any or all of the Option Shares, free from all claims,
liens, charges, pledges, mortgages, trust, equities and other
encumbrances, and with all rights attaching thereto on the Completion
Date.
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2.2.
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Vesting
Schedule:
Subject to the terms and conditions hereto, the Option may be exercised,
in whole or in part, in accordance with the following
schedule:
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The
Option Shares subject to the Option shall vest on May 15, 2008.
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2.3.
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Exercise
Period:
Once the Reverse Merger has been completed or abandoned pursuant
to the
terms of the definitive agreement regarding the Reverse Merger, the
Option
shall be exercisable in accordance with and on the date set forth
in
Exhibit
A
(the “Option
Effective Date”).
Subject to the vesting schedule set forth in Section 2.2 of this
Agreement, the Option may be exercised by any Transferee or his Nominee
at
any time following the Option Effective Date (“Exercise
Period”).
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2.4.
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Nominees:
The Transferee 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/her Option, who shall
hold
and/or exercise the transferred Option on behalf of the
Transferee.
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2.5.
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Exercise
Notice:
The Option may be exercised by the Transferee or his Nominee, in
whole or
in part, at any time during the Exercise Period, by serving an Exercise
Notice on the Transferor.
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2.6.
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Exercise:
The Transferor agrees that he shall, upon receipt of the Exercise
Notice
and payment of either the Exercise Price or the Alternative Exercise
Price, depending on whether the Performance Targets have been met,
take
all necessary steps to cause the issuance of any and all of the Option
Shares specified in the Exercise Notice to the Transferee or his
Nominee,
free from all claims, liens, charges, pledges, mortgages, trust,
equities
and other encumbrances, and with all rights now or hereafter attaching
thereto. Notwithstanding the foregoing, the Exercise of the Option
shall
be further subject to PRC laws and regulations and the Transferee
or his
Nominee shall complete any and all approval or registration procedures
(the “Approvals”) regarding the exercise of his Option at PRC competent
authorities in accordance with applicable PRC laws and regulations
(if
any). Furthermore, the Transferor agrees that in the event that the
Transferee or his Nominee is unable to obtain the Approval due to
reasons
attributable to the then PRC laws, rules and/or policy, the Transferor
shall coordinate with the Transferee or his Nominee and take viable
alternatives for the best interests of the Transferee or his Nominee.
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2.7.
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Transfer
Notice:
In case that any Transferee transfers any or all of his Option to
one or
more Nominees in accordance with Clause 2.4 above, the Transferee
shall
serve a Transfer Notice on the
Transferor.
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3
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2.8.
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Transfer
to Nominees:
The Transferor agrees that he shall, upon receipt of the Transfer
Notice,
take all actions necessary to allow the Nominee to be entitled to
any or
all of the Options specified in the Transfer
Notice.
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Upon
exercise by any Nominee of the transferred Option on behalf of the Transferee,
the Transferee shall serve the Exercise Notice on the Transferor in his own
name
for the exercising Nominee. Upon receipt of such Exercise Option, the Transferor
shall take necessary steps to cause the issuance of any and all of the relevant
Option Shares specified in the Exercise Notice to such Nominee in the same
manner as specified in Clause 2.6.
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2.9.
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Payment
of Exercise Price:
Upon Exercise of the Option in whole or in part, the Transferee or
his
Nominee shall pay the Exercise Price to the Transferor; or may elect
a
cashless exercise as set forth below.
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2.10.
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Cashless
Exercise: In
lieu of delivery of the Exercise Price in cash, the Transferee or
his
Nominee shall have the right, at his option, from time to time or
times
during the Exercise Period, satisfy
his obligation to pay the Exercise Price through a “cashless exercise,” in
which the Transferee or his Nominee shall be entitled to have the
Transferor’s shares as determined as
follows:
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X
=
Y [(A-B)/A]
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where:
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X
=
the number of Transferor’s
shares to be transferred to the Transferee
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Y
=
the number of Transferor’s
shares with respect to which the Option is being
exercised.
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A
=
the arithmetic average of the closing
prices of the common stock of the Listed Company for the five trading
days
immediately prior to (but not including) the exercise
date.
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B
=
the Exercise
Price divided by 100,000.
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If
the
result of the calculation of the cashless exercise pursuant to this Section
2.10
results in a fractional share, the Transferor shall round it up and transfer
the
next higher number of full shares to Transferee.
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2.11.
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The
Transferor’s Obligation upon Exercise:
The Transferor agrees that upon the Exercise of any Option by the
Transferee (or his Nominee), he shall cause and procure the number
of
Option Shares provided in the Exercise Notice to be transferred to
such
exercising Transferee or his Nominee within seven (7) Business Days
after
the date of the Exercise Notice.
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3.
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PERFORMANCE
TARGET AND CONDITION
PRECEDENT
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3.1.
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The
obligation of the Transferor to effect the Option and the transfer
of the
Option Shares at the Exercise Price to the Transferee or his Nominee
upon
his Exercise of the Option shall be subject to the fulfilment of
the
conditions (the “Performance
Targets”)
set forth in Exhibit
A
hereto. In the event that the Group does not achieve the Performance
Targets specified in Exhibit A, then the Transferee may exercise
the
Option at the Alternative Exercise Price on the date at which the
Option
would have otherwise been exercisable had the Performance Targets
been
met.
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4
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4.
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INFORMATION,
DISTRIBUTIONS AND
ADJUSTMENTS
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4.1.
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Information:
The Transferee shall be entitled to request from the Transferor at
any
time before the Completion, a copy of any information received from
the
Group which may be in the possession of the Transferor and, upon
such
request, the Transferor shall provide such information to the
Transferee.
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4.2.
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Distributions:
The Transferor agrees that the Transferee or his Nominee shall be
entitled
to all the Distributions in respect of his/her Option Shares. In
the event
that any such Distributions have been received by the Transferor
for any
reason, the Transferor shall, at the request of the relevant Transferee,
pay an amount equivalent to the Distributions received by him/her
to the
Transferee or his Nominee at the time of the Option Exercise by the
Transferee or his Nominee.
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4.3.
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Adjustments:
If, prior to the Completion, the Company shall effect any adjustment
in
its share capital (such as share split, share dividend, share combination
or other similar acts), then the number of Option Shares to be issued
to
the Transferee upon Exercise shall be adjusted
accordingly.
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5.
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COMPLETION
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5.1.
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Time
and Venue:
Completion of the sale and purchase of the Option Shares pursuant
to the
Exercise shall take place at such place decided by the Transferee
or his
Nominee on the Completion Date.
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5.2.
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Business
at Completion:
At Completion of each Exercise, all (but not part) of the following
shall
be transacted:
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5.2.1
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the
Transferee or his Nominee shall pay the Exercise Price to the Transferor
in consideration set forth in the Exercise Notice ;
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5.2.2
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the
Transferor shall cause the Company to within seven (7) Business Days
after
the date of Exercise Notice, deliver to the Transferee or his Nominee
the
following documents and cause the Company to take all corporate actions
necessary to give effect to such
delivery:
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(a)
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a
share certificate or share certificates in respect of the number
of the
Option Shares exercised by the Transferee or his Nominee;
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(b)
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a
certified true copy of the register of members of the Company updated
to
show the entry of the Transferee or his Nominee as the holder of
the
Option Shares so exercised; and
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(c)
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any
other documents as the Transferee or his Nominee may reasonably believe
necessary to give effect to the issuance of the exercised Option
Shares.
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6.
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CONFIDENTIALITY
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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.
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7.
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TRANSFEROR’S
UNDERTAKINGS
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7.1.
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Without
the prior written consent of the Transferee, the
Transferor shall vote his shares in the Company such that the
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 Company, or other similar equivalent arrangements,
(ii)
alter
the shareholding structure of the Company, (iii) cancel or otherwise
alter
the Option Shares, (iv)
amend the register of members or the memorandum and articles of
association of the Company, (v) liquidate or wind up the Company,
(vi)
sell, transfer, assign, hypothecate or otherwise reduce the value
of any
assets held by the Company, including but without limitation, any
and all
shares in the Listed Company or (vi) act or omit to act in such a
way that
would be detrimental to the interest of the Transferee in the Option
Shares. The Transferor shall cause the Company to disclose to the
Transferee true copies of all the financial, legal and commercial
documents of the Company and the resolutions of the shareholders
and the
board of directors.
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7.2.
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Without
the prior written consent of the Transferee, the Transferor shall
not
transfer, assign, pledge, hypothecate or vest any option on his share(s)
in the Company to any third party.
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8.
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MISCELLANEOUS
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8.1.
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Indulgence,
Waiver Etc:
No failure on the part of any Party to exercise and no delay on the
part
of such Party in exercising any right hereunder will operate as a
release
or waiver thereof, nor will any single or partial exercise of any
right
under this Agreement preclude any other or further exercise of it
or any
other right or remedy.
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8.2.
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Effective
Date and Continuing Effect of Agreement:
This Agreement shall take effect from the Effective Date. All provisions
of this Agreement shall not, so far as they have not been performed
at
Completion, be in any respect extinguished or affected by Completion
or by
any other event or matter whatsoever and shall continue in full force
and
effect so far as they are capable of being performed or observed,
except
in respect of those matters then already
performed.
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8.3.
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Successors
and Assigns:
This Agreement shall be binding on and shall ensure for the benefit
of
each of the Parties' successors and permitted assigns. Any reference
in
this Agreement to any of the Parties shall be construed accordingly.
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8.4.
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Further
Assurance:
At any time after the date of this Agreement, each of the Parties
shall,
and shall use its best endeavors to procure that any necessary third
party
shall, execute such documents and do such acts and things as any
other
Party may reasonably require for the purpose of giving to such other
Party
the full benefit of all the provisions of this
Agreement.
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8.5.
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Remedies:
No remedy conferred by any of the provisions of this Agreement is
intended
to be exclusive of any other remedy which is otherwise available
at law,
in equity, by statute or otherwise, and each and every other remedy
shall
be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law, in equity, by statute
or
otherwise. The election of any one or more of such remedies by any
Party
shall not constitute a waiver by such Party of the right to pursue
any
other available remedies.
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6
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8.6.
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Severability
of Provisions:
If any provision of this Agreement is held to be illegal, invalid
or
unenforceable in whole or in part in any jurisdiction, this Agreement
shall, as to such jurisdiction, continue to be valid as to its other
provisions and the remainder of the affected provision; and the legality,
validity and enforceability of such provision in any other jurisdiction
shall be unaffected.
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8.7.
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Governing
Law:
This Agreement shall be governed by, and construed in accordance
with, the
laws of the British Virgin Islands,
without reference to any conflict of laws principle that would cause
the
application of the laws of any jurisdiction other than the British
Virgin
Islands.
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8.8.
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Dispute
Resolution:
In the event of any dispute, claim or difference (the "Dispute")
between any Parties arising out of or in connection with this Agreement,
the Dispute shall be resolved in accordance with the following:
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(a)
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Negotiation
between Parties; Mediations.
The Parties agree to negotiate in good faith to resolve any Dispute.
If
the negotiations do not resolve the Dispute to the reasonable satisfaction
of all parties within thirty (30) days, subsection (b) below shall
apply.
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(b)
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Arbitration.
In the event the Parties are unable to settle a Dispute in accordance
with
subsection (a) above, such Dispute shall be referred to and finally
settled by arbitration at Hong Kong International Arbitration Centre
in
accordance with the UNCITRAL Arbitration Rules (the “UNCITRAL
Rules”)
in effect, which rules are deemed to be incorporated by reference
into
this subsection (b). The arbitration tribunal shall consist of three
arbitrators to be appointed according to the UNCITRAL Rules. The
language
of the arbitration shall be
English.
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8.9.
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Counterparts:
This Agreement may be signed in any number of counterparts, all of
which
taken together shall constitute one and the same instrument. Any
Party
hereto may enter into this Agreement by signing any such
counterpart.
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[SIGNATURE
PAGE FOLLOWS]
7
IN
WITNESS WHEREOF
the
Parties hereto have executed this Agreement on the date first above
written.
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The
Transferor
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By:
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▇▇▇▇
▇▇▇▇▇▇▇
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| The Transferee | |
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By:
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▇▇▇▇
▇▇▇▇▇
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EXHIBIT
A
PERFORMANCE
TARGET
A.
The
Group
shall have generated a gross revenue of at least RMB 24,500,000 for twelve
months commencing from January 1, 2008 to December 31, 2008 (the “First
Performance Period”); and
B.
The
Group
shall have generated a gross revenue of at least RMB 35,000,000 for twelve
months commencing from January 1, 2009 to December 31, 2009 (the “Second
Performance Period”).
C. The
Option Effective Date for the Performance Period shall be that date that is
forty five (45) days following the last day of the Second Performance Period.
SCHEDULE
A
Form
of Exercise
Notice
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To
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:
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▇▇▇▇
▇▇▇▇▇▇▇ (the “Transferor”)
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From
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:
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▇▇▇▇
▇▇▇▇▇ (the “Transferee”)
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Pursuant
to Section 2.6 of the Call Option Agreement dated April 14, 2008, by and between
▇▇▇▇
▇▇▇▇▇▇▇
, a
foreigner, and Mr. ▇▇▇▇ ▇▇▇▇▇ (the Transferee), the undersigned hereby provides
this Exercise Notice to exercise the Option in the manner specified below:
The
Transferee intends that payment of the Exercise Price shall be made as (check
one):
_______
“Cash Exercise”
_______
“Cashless Exercise”
(a) If
the
Transferee has elected a Cash Exercise, the Transferee shall pay the sum of
RMB
____________ to the Transferor.
(b) If
the
Transferor has elected a Cashless Exercise, the Transferee shall get the shares
calculated pursuant to Section 2.10 of the Call Option Agreement and, if the
calculation results in a fraction of a share, the next higher round number
of
shares.
Pursuant
to this exercise, the Transferor shall deliver [ ]
shares
to the Transferee in accordance with the instructions attached
hereto.
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Dated:
_______________, ______
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[ ]
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SCHEDULE
B
Form
of Transfer Notice
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To
|
:
|
▇▇▇▇
▇▇▇▇▇▇▇(the “Transferor”)
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From
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:
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▇▇▇▇
▇▇▇▇▇ (the “Transferee”)
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I,
the
undersigned, refer to the Call Option Agreement (the "Call
Option Agreement")
dated
April 14, 2008 made between the Transferee and the Transferor. Terms defined
in
the 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 Option, expressed in terms of the number of Option
Shares represented by the portion of the Option transferred in accordance with
the terms and conditions of the Call Option Agreement,.
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Nominees
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Option Shares to be Transferred
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Dated
[ ]