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THIS
NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘ACT’’), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE MAKER.
PROMISSORY
NOTE
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$16,667.00
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As
of October 5,
2010
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FOR VALUE
RECEIVED, China VantagePoint Acquisition Company (“Maker”) promises to pay to
the order of Yiting
Liu (“Payee”), or her permitted assigns, the principal sum of Sixteen
Thousand Six Hundred Sixty-Seven Dollars and No Cents ($16,667.00) or such
lesser amount as shall equal the outstanding principal amount hereof (the
“Principal Balance”) in lawful money of the United States of America, on the
terms and conditions described below. Notwithstanding any contrary
term or provision contained herein, it is understood and agreed that in the
event that the Company fails to consummate the IPO, the Maker has no obligation
to satisfy the Maker’s Obligations hereunder, and further that no officer,
director or shareholder of the Maker shall have any personal liability in the
event that the IPO is not consummated.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed to them in Section 11 hereof.
1. Principal. The
Principal Balance of this Note shall be repayable on the earlier of (i) October
5, 2011 or (ii) the closing date of the IPO.
2.
Interest. No
interest shall accrue on the Principal Balance of this Note.
3. Application of
Payments. All payments shall be applied first to payment in
full of any costs incurred in the collection of any sum due under this Note,
including (without limitation) reasonable attorneys’ fees and then to the
reduction of the Principal Balance of this Note. This Note may be
prepaid. Any prepayment shall be credited against and reduce the Principal
Balance of, and all other sums payable with regard to, this
Note.
4.
Events of
Default. The following shall constitute Events of
Default:
(a)
Failure to Make
Required Payments. Failure by Maker to pay the Principal
Balance of this Note within five (5) business days following the date when
due.
(b) Voluntary Bankruptcy,
Etc. The
commencement by Maker of a voluntary case under the Federal Bankruptcy Code, as
now constituted or hereafter amended, or any other applicable federal or state
bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or
the consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of Maker or for any substantial part of its property, or the making by
it of any assignment for the benefit of creditors, or the failure of Maker
generally to pay its debts as such debts become due, or the taking of corporate
action by Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy,
Etc. The entry
of a decree or order for relief by a court having jurisdiction in the premises
in respect of maker in an involuntary case under the Federal Bankruptcy Code, as
now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
Maker or for any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days.
5.
Remedies.
(a)
Upon the occurrence of an Event of Default specified in Section 4(a),
Payee may, by written notice to Maker, declare this Note to be due and payable,
whereupon the Principal Balance of, and all other sums payable with regard to,
this Note shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the documents evidencing the same to the
contrary notwithstanding.
(b)
Upon the occurrence of an
Event of Default specified in Sections 4(b) and 4(c), the Principal Balance of,
and all other sums payable with regard to, this Note shall automatically and
immediately become due and payable, in all cases without any action on the part
of Payee.
6. Waivers. Maker
and all endorsers and guarantors of, and sureties for, this Note waive
presentment for payment, demand, notice of dishonor, protest, and notice of
protest with regard to the Note, all errors, defects and imperfections in any
proceedings instituted by Payee under the terms of this Note, and all benefits
that might accrue to Maker by virtue of any present or future laws exempting any
property, real or personal, or any part of the proceeds arising from any sale of
any such property, from attachment, levy or sale under execution, or providing
for any stay of execution, exemption from civil process, or extension of time
for payment; and Maker agrees that any real estate that may be levied upon
pursuant to a judgment obtained by virtue hereof, on any writ of execution
issued hereon, may be sold upon any such writ in whole or in part in any order
desired by Payee.
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7. Unconditional
Liability. Maker hereby waives all notices in connection with
the delivery, acceptance, performance, default, or enforcement of the payment of
this Note, and agrees that its liability shall be unconditional, without regard
to the liability of any other party, and shall not be affected in any
manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Payee, and consents to any and all extensions of
time, renewals, waivers, or modifications that may be granted by Payee with
respect to the payment or other provisions of this Note, and agree that
additional makers, endorsers, guarantors, or sureties may become parties hereto
without notice to them or affecting their liability hereunder.
8. No Claim to Trust
Account. Payee
understands that Maker is a blank check company formed for the purpose of
consummating a “business combination”, as such term will be described in a
prospectus to be filed with the U.S. Securities and Exchange Commission (the
“Prospectus”), will establish a trust account (the “Trust Account”), and will
not have access to the funds in such Trust Account except under certain
circumstances to be set forth in the Prospectus. Payee agrees that it
does not, and will not, have any right, title, interest or claim of any kind in
or to (i) any assets in the Trust Account, (ii) assets of Maker, to the extent
such right, title, interest or claim would impair the amounts in the Trust
Account or (iii) assets distributed from the Trust Account to the public
stockholders (each such right, title, interest or claim a “Claim”); and hereby
waives any Claim, including any claim arising out of any other section of this
Agreement, it may have in the future as a result of, or arising out of, this
agreement or any other negotiations, contracts or agreements with Maker and will
not seek recourse against the Trust Account or the public stockholders for any
reason whatsoever. Payee acknowledges that he/she has received an
initial draft of the Prospectus which contains summaries of the “business
combination” and the circumstances under which Maker will have access to the
funds in the Trust Account and further acknowledges that such summaries and the
circumstances under which Maker will have access to the funds in the Trust
Account are subject to change.
9. Notices. Any
notice called for hereunder shall be deemed properly given if (i) sent by
certified mail, return receipt requested, (ii) personally delivered, (iii)
dispatched by any form of private or governmental express mail or delivery
service providing receipted delivery, (iv) sent by telefacsimile or (v) sent by
e-mail, to the following addresses or to such other address as either party may
designate by notice in accordance with this Section:
If to
Maker:
China
VantagePoint Acquisition Company
275
Madison Avenue, 6th
Floor
New York,
New York 10016
Attn.:
Wei Li, Chief Executive Officer
If to
Payee:
Yiting
Liu
liu.yiting@gmail.com
224
Bloomfield Street, Apt 2
Hoboken,
NJ 07030
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Notice
shall be deemed given on the earlier of (i) actual receipt by the receiving
party, (ii) the date shown on a telefacsimile transmission confirmation, (iii)
the date on which an e-mail transmission was received by the receiving party’s
on-line access provider (iv) the date reflected on a signed delivery receipt, or
(vi) two (2) Business Days following tender of delivery or dispatch by express
mail or delivery service.
10.
Restriction on
Transferability. Payee shall not offer, sell, transfer or
otherwise dispose of this Note without the written consent of Maker, and any
such offer, sale, transfer or disposition made without the written consent of
Maker shall be void and of no effect. With respect to any offer,
sale, transfer or other disposition of this Note, Payee shall give written
notice to Maker prior thereto, describing briefly the manner thereof, together
with a written opinion of Payee’s counsel, or other evidence reasonably
satisfactory to the Maker, to the effect that such offer, sale, transfer or
other distribution may be effected without registration or qualification (under
any applicable law then in effect). Upon receiving such written notice and
reasonably satisfactory opinion, if so requested, or other evidence, Maker may
notify Payee that Payee may sell or otherwise dispose of this Note, all in
accordance with the terms of the notice delivered to Maker. Each Note thus
transferred shall bear a legend as to the applicable restrictions on
transferability in order to ensure compliance with the Act, unless in the
opinion of counsel for Maker such legend is not required in order to ensure
compliance with the Act.
11.
Definitions. As
used in this Note, the following capitalized terms have the following
meanings:
(a)
“IPO” shall mean the initial public offering of the Maker’s
securities.
(b)
“Obligation” shall mean and include all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Maker to Payee of every
kind and description, now existing or hereafter arising under or pursuant to the
terms of this Note, including, all interest, fees, charges, expenses, attorneys’
fees and costs and accountants’ fees and costs chargeable to and payable by
Maker hereunder and thereunder, in each case, whether direct or indirect,
absolute or contingent, due or to become due, and whether or not arising after
the commencement of a proceeding under the Federal Bankruptcy Code, as amended
from time to time and whether or not allowed or allowable as a claim in any such
proceeding.
12.
Construction. This
Note shall be construed and enforced in accordance with the domestic, internal
law, but not the law of conflict of laws, of the State of New York.
13. JURISDICTION;
SERVICE; WAIVERS. ANY ACTION OR PROCEEDING
IN CONNECTION WITH THIS NOTE MAY BE BROUGHT IN A COURT OF RECORD OF THE STATE OF
NEW YORK IN THE COUNTY OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY CONSENT
TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OF THE STATE OF NEW YORK, AND
SERVICE OF PROCESS MAY BE MADE UPON THE PARTIES TO THIS NOTE BY MAILING A COPY
OF THE SUMMONS AND ANY COMPLAINT TO SUCH PERSON, BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS TO BE USED FOR THE GIVING OF
NOTICES UNDER THIS NOTE. BY ACCEPTANCE HEREOF, THE PARTIES HERETO EACH HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OR
MAINTAINING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
JURISDICTION.
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14.
Severability. Any
provision contained in this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN
WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this
Note to be issued as of the day and year first above written.
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CHINA
VANTAGEPOINT ACQUISITION
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COMPANY
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By:
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Name:
Wei Li
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Title:
Chief Executive Officer
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