THIS PUT AND CALL OPTION AGREEMENT (this “Agreement”) is made on December 10, 2008 BETWEEN: WHEREAS: IT IS AGREED as follows:
THIS PUT AND CALL OPTION AGREEMENT
(this “Agreement”) is made on December 10, 2008
BETWEEN:
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(1)
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MODERN DEVELOP LIMITED
of ▇▇▇▇ ▇, ▇/▇ ▇▇▇▇▇
▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (“Modern”);
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(2)
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PANTHEON CHINA ACQUISITION
CORP. of Suite 10-64, #9 Jianguomenwai
Avenue, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ (“Pantheon”);
and
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(3)
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▇▇▇▇ ▇. ▇▇▇▇ of Suite 10-64, #9 Jianguomenwai
Avenue, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇ (“Chen”);
and
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(4)
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YA GLOBAL INVESTMENTS, L.P.
of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ (“YA
Global”);
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WHEREAS:
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(A)
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Simultaneously
with the entering into of this Agreement, YA Global is entering into
purchase agreements with stockholders of Pantheon for the purchase of an
aggregate of 2,273,699 shares (the “Shares”) of the common
stock of Pantheon at a purchase price of approximately $5.97 per
Share.
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(B)
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Modern
is interested in acquiring the right to purchase the Shares and YA Global
is interested in acquiring the right to require Modern to purchase the
Shares, in each case during the time period and upon the terms and
conditions described herein.
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IT IS AGREED as
follows:
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1.
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DEFINITIONS
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“Call
Option” means the call option granted under Section 2.
“Closing
Date” means the date specified in a Put Option Notice or a Call Option Notice,
as the case may be.
“Early
Termination Date” means the date on which the parties to the Merger Agreement
terminate or abandon such agreement and the transactions contemplated
thereby.
“Extended
Term” means from July 1, 2009 until September 30, 2009.
“Extension
Approval Date” means December 14, 2008, the date on which the stockholders of
Pantheon vote to approve the amendments to its certificate of incorporation
described in its definitive proxy statement on Schedule 14A filed on December 4,
2008 (the “Extension Proxy”).
“Extension
Option Fee” means $0.4247 per Share.
“Holder”
means each of YA Global.
“Initial
Term” means from the date hereof until June 30, 2009.
“Merger
Agreement” means the Agreement and Plan of Merger, Conversion and Share
Exchange, dated as of November 3, 2008 between Pantheon, China Cord Blood
Services Corporation Limited (“CCBS”) and certain of the shareholders of CCBS
named therein.
“Merger
Closing” means the completion of the transactions contemplated by the Merger
Agreement.
“Option
Fee” means $0.55 per Share plus the 125,000 shares of Pantheon common stock
referred to in Section 2.4.
“Option
Price” means $5.97 per Share.
“Put
Option” means the option granted under Section 3.
“Shares”
has the meaning set forth in the recitals above.
“Trust
Fund” means the trust account established in connection with Pantheon’s initial
public offering.
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2.
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CALL
OPTION
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2.1.
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In
consideration of the payment of the Option Fee, YA Global hereby grants to
Modern an option to require such Holder to sell all (and not less than
all) of the Shares owned by such Holder to Modern at the Option Price
during the Initial Term, provided that such
option shall expire on the earlier of (i) the expiration of the Initial
Term or (ii) the record date for the special meeting of Pantheon’s
stockholders in connection with the approval of the business combination
contemplated by the Merger Agreement.
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2.2.
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Subject
to the payment of the Extension Option Fee as described in Section 2.5
below, YA Global hereby grants to Modern an option to require such Holder
to sell all (and not less than all) of the Shares owned by such Holder to
Modern at the Option Price during the Extended Term, provided that such
option shall expire on the earlier of (i) the expiration of the Extended
Term or (ii) the record date for the special meeting of Pantheon’s
stockholders in connection with the approval of the business combination
contemplated by the Merger Agreement.
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2.3.
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On
the date (the “Commencement Date”) of the closing of the purchase of
Shares pursuant to the purchase agreements entered into simultaneously
herewith which shall bring the aggregate amount owned by YA Global to
2,273,699 shares of Pantheon common
stock:
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2.3.1.
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Modern
shall transfer $2,530,000 of the Option Fee to an escrow account (the
“Escrow Account”) maintained by Loeb & Loeb LLP, as escrow agent
(which escrow agent is acceptable to YA Global and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLC (“▇▇▇▇▇▇”)), which amount shall be
disbursed
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2.3.1.1.
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Up
to $345,998 upon the Commencement Date as follows: $0.076087 per share
owned by YA Global on the Commencement Date in accordance with wire
transfer instructions previously furnished by YA Global;
and
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2.3.1.2.
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Up
to $1,836,754 upon the earlier to occur of the Extension Approval Date (or
the immediately following business day) and the Early Termination Date as
follows: $0.403913 per share owned by YA Global on the Commencement Date
in accordance with wire transfer instructions previously furnished by YA
Global, and up to $318,318 to the account of ▇▇▇▇▇▇ (calculated at $.07
per share owned by YA Global on the Commencement Date) in accordance with
wire transfer instructions previously furnished by ▇▇▇▇▇▇;
and
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2.3.1.3.
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In
the event the Extension is not approved on the Extension Approval
Date and Pantheon has not effected a Liquidation (as defined in
Section 4.3) by the 15th
day following the Commencement Date, then $24,500 per day from such
15th
day until such Liquidation shall have been effected shall be transferred
from the Escrow Account on a weekly basis to YA Global on the weekly
anniversary thereof (or the next following business day) as follows:
$0.037283 per share owned by YA Global on the Commencement Date in
accordance with wire transfer instructions previously furnished by YA
Global.
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2.4.
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Simultaneously
herewith, Chen hereby sells, transfers and assigns all right, title and
interest in 125,000 shares of Pantheon’s common stock currently owned by
Chen to YA Global. Chen shall tender certificates representing
such shares to YA Global on termination of the Escrow Period as defined in
the Stock Escrow Agreement dated December 14, 2006 to which Chen is a
party relating to such shares. In addition, Chen hereby assigns
to YA Global his registration rights with respect to such shares under the
Registration Rights Agreement dated December 14, 2006 to which Chen is a
party.
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2.5.
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In
the event Modern shall elect to extend the term of this Agreement to
September 30, 2009, on or prior to June 30, 2009, Modern shall notify YA
Global in writing of such extension and shall transfer up to $1,931,280 of
the Extension Option Fee as follows: $0.4247 per Share owned by YA Global
on the Commencement Date in accordance with wire transfer instructions
previously furnished by YA
Global.
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3.
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PUT
OPTION
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3.1.
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In
consideration of the grant of the Call Option, Modern hereby grants
Victory Park the option to require Modern to buy from such Holder any or
all of the Shares owned by such Holder at the Option Price on the 5th
business day preceding the special meeting of Pantheon’s stockholders in
connection with the approval of the business combination contemplated by
the Merger Agreement.
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4.
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VOTING
OF SHARES; LOCK-UP; FORCED
LIQUIDATION
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4.1.
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YA
Global may vote against the business combination proposal presented at the
special meeting of Pantheon’s stockholders in connection with the approval
of the business combination contemplated by the Merger Agreement if the
Call Option has not been exercised and the Option Price to be received by
such Holder has not been fully paid prior to such
meeting.
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4.2.
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YA
Global agrees not to take any action (including any purchase or sale of
any security or the establishment of any arbitrage or similar derivative
position relating to any security) that is reasonably expected to
materially adversely affect the adoption of the proposals described in the
Extension Proxy.
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4.3.
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In
the event of an Early Termination Date, Pantheon hereby agrees to effect
an early liquidation of its assets in accordance with Delaware law (a
“Liquidation”) within ten (10) business days following such Early
Termination Date.
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4.4.
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Except
as contemplated by this Agreement, YA Global agrees that, from the date
hereof until the earlier of (i) the nine month anniversary of the
Commencement Date or (ii) the Merger Closing, it will not
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity
with the undersigned or any affiliate of the undersigned), directly or
indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended and the
rules and regulations of the Commission promulgated thereunder (each, a
“Transfer”) with respect to, any
Shares.
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4.5.
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In
the event there has not been a closing pursuant to Section 5 hereof during
the Initial Term and Modern has not elected to extend the term of this
Agreement to September 30, 2009 pursuant to Section 2.5 hereof and
delivered the Extension Option Fee within ten (10) business days following
June 30, 2009, Pantheon hereby agrees to effect a Liquidation on such
tenth business
day.
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5.
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COMPLETION
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5.1.
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If
a Put Option or, as the case may be, Call Option is exercised, a closing
shall be held on the Closing Date specified in the relevant notice at the
offices of Pantheon’s counsel, Loeb & Loeb LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ at which YA Global will deliver certificates representing
such Shares as shall have been specified in the relevant notice (or shall
have delivered such Shares through the book-entry facilities of DTC as
directed by Modern) and Modern will deliver immediately available funds
equal to the aggregate Option Price for such Shares to an account of YA
Global previously furnished to Modern within five business days of such
closing.
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6.
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INDEMNIFICATION
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6.1.
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In
the event of the liquidation of the Trust Fund while YA Global owns any
Shares, Modern and Chen hereby agree, jointly and severally, to indemnify
and hold harmless YA Global against any loss incurred in such liquidation
in an amount equal to the difference between the amount received by YA
Global upon liquidation per Share and $5.97 per
Share.
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6.2.
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Modern
and Chen hereby agree, jointly and severally, to indemnify and hold
harmless YA Global and each of its partners, principals, members,
officers, directors, employees, agents, representatives and affiliated or
managed funds from and against any and all losses, claims, damages,
liabilities and expenses, joint or several, of any kind or nature
whatsoever, and any and all actions, inquiries, proceedings and
investigations in respect thereof, whether pending or threatened, to which
any such party may become subject, arising in any manner out of or in
connection with this Agreement or the transactions contemplated herein to
the fullest extent permitted under applicable law, regardless of whether
any of such parties is a party hereto, and immediately upon request
reimburse such party for such party’s legal and other expenses as they are
incurred in connection with investigating, preparing, defending, paying,
settling or compromising any such action, inquiry, proceeding or
investigation (including, without limitation, usual and customary per diem
compensation for any such party’s involvement in discovery proceedings or
testimony); provided that neither
Modern nor Chen shall be liable for any such loss, liability, claim,
damage or expense resulting from actions taken by YA Global in bad faith
or as a result of its gross negligence or willful misconduct; and provided further that
such foregoing indemnity pursuant to this Section 6.2 shall not be
available for any losses, claims, damages, liabilities or expenses or with
respect to any lawsuits, inquiries, proceedings and investigations in
respect thereof to the extent such arise out of any actions taken after
the earlier of the Closing Date and the Merger
Closing.
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6.3.
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Modern
and Chen hereby agree, jointly and severally, to indemnify ▇▇▇▇▇▇, its
affiliates (within the meaning of the Securities Act of 1933, as amended),
and each of its respective partners, directors, officers, agents,
consultants, employees and controlling persons (within the meaning of the
Securities Act of 1933, as amended)(each of ▇▇▇▇▇▇ and such other person
or entity is hereinafter referred to as an “Indemnified Person”), from and
against any and all losses, claims, damages, liabilities and expenses,
joint or several, and all actions, inquiries, proceedings and
investigations in respect thereof, to which any Indemnified Person may
become subject arising in any manner out of or in connection with this
Agreement, regardless of whether any of such Indemnified Persons is a
party hereto, and immediately upon request reimburse an Indemnified Person
for such person’s legal and other expenses as they are incurred in
connection with investigating, preparing, defending, paying, settling or
compromising any such action, inquiry, proceeding or investigation
(including without limitation, usual and customary per diem compensation
for any Indemnified Person’s involvement in discovery proceedings or
testimony), provided that neither Modern nor Chen shall be liable for any
such loss, liability, claim, damage or expense resulting from actions
taken by ▇▇▇▇▇▇ in bad faith or as a result of its gross negligence or
willful
misconduct
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7.
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REPRESENTATIONS AND WARRANTIES
AND COVENANTS
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7.1. Pantheon
represents and warrants that is not aware of any outstanding liabilities that
are not subject to an effective waiver of claims against the Trust Fund, except
those liabilities set forth on the Schedule of Liabilities attached hereto and
such Schedule of Liabilities includes all liabilities that resulted from, and
potential liabilities that could result from, target businesses, vendors and
service providers that have not waived any claims against the Trust
Fund.
7.2 Pantheon
hereby represents and warrants that it has not obtained (except as otherwise
disclosed on the Schedule of Liabilities described in Section 7.1 above) and
agrees that it will not obtain, the services of any vendor or service provider
unless and until such vendor or service provider acknowledges in writing that it
does not have any right, title, interest or claim of any kind in or to any
monies of the Trust Fund and waives any claim it may have in the future as a
result of, or arising out of, any negotiations, contracts or agreements with
Pantheon and will not seek recourse against the Trust Fund for any reason
whatsoever; provided
that the foregoing shall not apply to Pantheon’s independent
accountants.
7.3 Pantheon
agrees to invest the monies in the Trust Fund in United States “government
securities” within the meaning of Section 2(a)(16) of the Investment Company Act
of 1940 until the earlier of the Merger Closing or two business days prior to
the liquidation of the Trust Fund.
7.4 Pantheon
agrees that it shall not incur any Indebtedness (as defined below) in excess of
$5,000 without the prior written consent of YA Global prior to the earlier of
the Merger Closing or the Early Termination Date, unless the Call Option has
been exercised and the Option Price has been paid in full; provided that such consent
shall not be unreasonably withheld in the case of Indebtedness of Pantheon to
the officers of Pantheon, or any Indebtedness the holders of which shall have
waived any right or claim against Trust Account and incurred solely to fund
Pantheon’s normal business expenses. “Indebtedness”
means (a) indebtedness for borrowed money or the deferred price of property,
goods or services (other than trade and other payables incurred in the ordinary
course of business), such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, and (c) capital lease
obligations.
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8.
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COUNTERPARTS;
FACSIMILE EXECUTION
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8.1.
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This
Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and
delivered to the other party. Facsimile execution and delivery
of this Agreement is legal, valid and binding for all
purposes.
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9.
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ENTIRE
AGREEMENT; THIRD PARTY
BENEFICIARIES
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9.1.
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This
Agreement, taken together with all Schedules hereto (a) constitute the
entire agreement, and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the matters
contemplated hereby and (b) is not intended to confer upon any person
other than the parties (and those persons described in Section 6.3 as
entitled to indemnification hereunder) any rights or
remedies.
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10.
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GOVERNING
LAW
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10.1.
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In
accordance with Section 5-1401 of the General Obligations Law of the State
of New York, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to
principles of conflicts of laws that would result in the application of
the substantive law of another jurisdiction. The parties hereto
agree that any action, proceeding or claim arising out of or relating in
any way to this Agreement shall be brought and enforced in the courts of
the State of New York or the United States District Court for the Southern
District of New York, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The parties hereto hereby waive any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Pantheon, Modern and Chen each hereby appoints,
without power of revocation, Loeb & Loeb, LLP, New York, New York,
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as their respective agent to accept and
acknowledge on its behalf service of any and all process which may be
served in any action, proceeding or counterclaim in any way relating to or
arising out of this
Agreement.
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11.
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ASSIGNMENT
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11.1.
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Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the
other party, provided that Modern
may assign its rights under the Call Option to purchase the Shares, but
not its obligation to purchase the Shares, to any other
person. Any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and
assigns.
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12.
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EXPENSES
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12.1.
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Modern
shall pay not later than December 15, 2008 the legal fees and expenses of
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to YA Global,
in the amount of
$25,000.
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[remainder
of page left intentionally blank; signature page follows]
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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YA
GLOBAL INVESTMENTS, L.P.
BY:
YA GLOBAL ADVISORS, LLC
Its:
Investment Manager
By:
/s/ ▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Senior Managing Director
MODERN
DEVELOP LIMITED
By:
/s/ Na
O
Name:
Na O
Title:
Director
PANTHEON
CHINA ACQUISITION CORP.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
and CEO
/s/ ▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇
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SCHEDULE
1
PUT
OPTION NOTICE
To:
Modern
| Attention: [•] |
[Date]
Ladies
and Gentlemen,
Put
Option Notice
We refer
to the Put and Call Option Agreement (the “Put and Call Option
Agreement”) dated December 10, 2008 and made between you and the
undersigned. Terms defined in the Put and Call Option Agreement shall bear the
same meaning when used herein.
We hereby
confirm that we wish to exercise the option granted under Section 3 of the Put
and Call Option Agreement and accordingly the Put Option is hereby exercised
with respect to ________ Shares.
The
Closing Date shall be [•].
This put
option notice is irrevocable and is governed by, and shall be construed in
accordance with the laws of the State of New York.
Yours
faithfully
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YA
GLOBAL INVESTMENTS, L.P.
BY:
YA GLOBAL ADVISORS, LLC
Its:
Investment Manager
|
|
By:
|
Name:
Title:
SCHEDULE
2
FORM
OF CALL OPTION NOTICE
|
To:
|
YA
GLOBAL INVESTMENTS, L.P.
BY:
YA GLOBAL ADVISORS, LLC
Its:
Investment Manager
|
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[•]
|
||
|
Attention:
|
[•]
|
|
[Date]
Ladies
and Gentlemen,
Call
Option Notice
We refer
to the Put and Call Option Agreement (the “Put and Call Option
Agreement”) dated December 10, 2008 and made between you and Modern.
Terms defined in the Put and Call Option Agreement shall bear the same meaning
when used herein.
We hereby
confirm that we wish to exercise the option granted under Section 2 of the Put
and Call Option Agreement and accordingly the Call Option is hereby exercised
with respect to ______ Shares.
The
Closing Date shall be [•].
This call
option notice is irrevocable and is governed by, and shall be construed in
accordance with the laws of the State of New York.
Yours
faithfully
SCHEDULE
OF LIABILITIES
|
McGladrey
& ▇▇▇▇▇▇
|
$23,683
|
|
▇▇▇▇▇▇▇
|
15,000
|
|
PR
Newswire
|
1,620
|
|
$40,303
|