DATED 7 January 2009
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DATED
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7
January
2009
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MANDARIN
DRILLING CORPORATION
and
OFFSHORE
GROUP INVESTMENT LIMITED
and
VALENCIA
DRILLING CORPORATION
and
VANTAGE
DEEPWATER COMPANY
and
F3
CAPITAL
relating
to a Purchase Agreement in respect of
the
Drillship having hull number 3601
THIS AGREEMENT is made on the
7 day of January 2009
BETWEEN:
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(1)
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MANDARIN DRILLING CORPORATION,
is a company organised and existing under the laws of the ▇▇▇▇▇▇▇▇
Islands having its registered office at Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands MH96960 (the Seller);
and
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(2)
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OFFSHORE GROUP INVESTMENT
LIMITED a company organised
and existing under the laws of the Cayman Islands, having its registered
office at c/▇ ▇▇▇▇▇▇ Corporate
Services Limited, P.O. Box 309 ▇▇▇▇▇▇ House, Grand Cayman, ▇▇▇-1104,
Cayman Island, (the Buyer);
and
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(3)
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VALENCIA DRILLING CORPORATION,
a corporation organized and existing under the laws of the ▇▇▇▇▇▇▇▇
Islands (Valencia);
and
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(4)
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VANTAGE DEEPWATER COMPANY,
a Cayman Islands exempted company (Vantage);
and
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(5)
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F3 CAPITAL, a company organized
and existing under the laws of the Cayman Islands, having its registered
office at c/▇ ▇▇▇▇▇▇▇▇ Corporate Services Limited, Scotia Centre, ▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (F3)
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(referred
to collectively as the parties)
WHEREAS:
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(A)
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On 13 September 2007
the Seller entered into a shipbuilding contract with Daewoo Shipbuilding
& Marine Engineering Co. Ltd in respect of the construction of one
drillship having ship number 3601 (the Vessel).
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(B)
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By
a purchase agreement dated 24 March 2008 (the Purchase Agreement) the
Seller has agreed to sell the Vessel to the
Buyer.
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(C)
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The
parties wish to terminate the Purchase
Agreement.
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(D)
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On
18 November 2008 F3 Capital and Vantage Deepwater Company entered into a
Share Sale and Purchase Agreement pursuant to which F3 Capital has agreed
to sell shares in the capital of the Seller to Vantage Deepwater Company
(the Share Sale and Purchase
Agreement).
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(E)
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Valencia
and not the Seller as premised in clause 22 of the Purchase Agreement has
entered into a contract with Daewoo Shipbuilding & Marine Engineering
Co. Ltd for the construction and purchase of the ultra-deepwater
drillship, hull #3602 (the Second Vessel), and
clause 22 of the Purchase Agreement should have stated that Valencia, and
not the Seller, grants the Buyer an option to purchase the Second Vessel
(the Option).
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IT IS AGREED as
follows:
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1.
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Words
and expressions used in this Agreement shall, to the extent applicable and
unless defined in this Agreement or the context otherwise requires, have
the meaning ascribed to them in the Purchase
Agreement
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2.
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Termination
of the Purchase Agreement shall not affect the terms of any of the clauses
or agreements referred to in clause 4. Except as provided in the preceding
sentence, termination of the Purchase Agreement shall relieve each party
from any liability or obligation for any matter, undertaking or condition
which has not been done, observed or performed by that party, before
termination or is required to be observed or performed by that party,
after termination.
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3.
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The
parties agree that the Purchase Agreement shall terminate effective as of
the initial closing date of the Share Sale and Purchase Agreement and
shall immediately cease to be of any effect
thereafter.
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4.
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The
following provisions of the Purchase Agreement,
namely:
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(a)
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23(a)
(Notices);
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(b)
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23(f)
(Severability);
and
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(c)
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23(g)
(Governing Law and
Jurisdiction),
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are to
apply as if they were set out in this Agreement, but with references in those
clauses of the Purchase Agreement being replaced by references to this
Agreement.
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5.
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Satisfaction of the
Option
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5.1
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In
lieu of the $10,000,000 fee that the Buyer is obliged to pay to the Seller
for the lapse of the Option which was granted to the Buyer pursuant to
clause 22 of the Purchase Agreement, Vantage hereby agrees to issue to F3,
7,299,270 ordinary shares of Vantage (the Shares) in full
settlement of such
obligation.
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5.2
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Within
2 business days of execution of this agreement, Vantage shall file an
Additional Listing Application with the American Stock Exchange seeking
approval for the listing of the Shares. The Shares shall be issued by
Vantage to F3 and Vantage will deliver to F3 a share certificate for all
of the Shares, in each case as soon as practicable, after receipt by
Vantage of approval by AMEX of such Additional Listing
Application.
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6.
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Representation and
Covenants of the
Seller.
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6.1
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The
Seller hereby represents, warrants and covenants to the Buyer, as
follows:
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(a)
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Due
Organization. The Seller has
been duly organized, validly exists and is in good standing, as
applicable, under the laws of the jurisdiction of its
organization.
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3
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(b)
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Power; Due
Authorization; Binding Agreement. The Seller has
full legal capacity, power and authority to execute and deliver this
agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. The execution and delivery of this
agreement, and the consummation of the transactions contemplated hereby by
the Seller, have been duly and validly authorized by all necessary action
on the part of the Seller, and no other proceedings on the part of the
Seller are necessary to authorize this Agreement, or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes a valid and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except that enforceability may be subject to the effect
of:
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(i)
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any
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and to general principles of
equity and;
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(ii)
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any
laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, regardless of whether considered in a
proceeding in law or equity.
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(c)
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No
Conflicts. The execution and
delivery of this Agreement by the Seller does not, and the performance of
the terms of this agreement by the Seller will
not:
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(i)
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require
the Seller to obtain the consent or approval of any other person pursuant
to any agreement, obligation or instrument binding on the Seller or its
properties and assets; or
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(ii)
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conflict
with or violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to the Seller or by which any
property or asset of the Seller is bound;
or
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(iii)
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violate
any other agreement to which the Seller is a
party.
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7.
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Representations and
Warranties of the
Buyer.
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7.1
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The
Buyer hereby represents and warrants to as
follows.
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(a)
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Due
Organization. The Buyer has
been duly organized, validly exists and is in good standing, as
applicable, under the laws of the jurisdiction of its
organization.
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(b)
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Power; Due
Authorization; Binding Agreement. The Buyer has
full legal capacity, power and authority to execute and deliver this
agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. The execution and delivery of this
agreement, and the consummation of the transactions contemplated hereby by
the Buyer, have been duly and validly authorized by all necessary action
on the part of the Buyer, and no other proceedings on the part of the
Buyer are necessary to authorize this, agreement,
or
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4
to
consummate the transactions contemplated hereby. This agreement has been duly
and validly executed and delivered by the Buyer and constitutes a valid and
binding agreement of the Buyer, enforceable against the Buyer in accordance with
its terms, except that enforceability may be subject to the effect
of
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(i)
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any
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and to general principles of
equity; and
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(ii)
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any
laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, regardless of whether considered in a
proceeding in law or equity.
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(c)
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No
Conflicts. The execution and
delivery of this agreement by the Buyer does not, and the performance of
the terms of this agreement by the Buyer will
not:
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(i)
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require
the Buyer to obtain the consent or approval of any governmental or
regulatory authority, domestic or foreign;
or
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(ii)
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conflict
with or violate the organizational documents of the Buyer;
or
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(iii)
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require
the consent or approval of any other person pursuant to any agreement,
obligation or instrument binding on the Buyer or its properties and
assets; or
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(iv)
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conflict
with or violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to the Buyer or by which any property
or asset of the Buyer is bound;
or
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(v)
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violate
any other agreement to which the Buyer is a
party.
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8.
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Each
party undertakes that it shall not at any time after the date of this
agreement use, divulge or communicate to any person (except to its
professional representatives or advisers or as may be required by law or
any legal or regulatory authority) any confidential information concerning
the terms of this agreement or the Purchase Agreement and each of the
parties shall use its reasonable endeavours to prevent the publication or
disclosure of any confidential information concerning such
matters.
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9.
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This
Agreement may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which shall be an original but all
of which together shall constitute one and the same
instrument.
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10.
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A
person who is not a party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of its
terms.
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AS WITNESS this Agreement has been
executed as a deed on the day and year first before written.
5
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SIGNED
and DELIVERED
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)
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as
a DEED
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)
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by Hsin
Chi Su
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)
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/s/
Hsin Chi Su
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for
and on behalf of
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)
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Authorised
Signatory
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MANDARIN
DRILLING CORPORATION
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)
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)
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SIGNED
and DELIVERED
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)
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as
a DEED
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)
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by
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)
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇
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for
and on behalf of
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)
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Authorised
Signatory
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OFFSHORE
GROUP INVESTMENT LIMITED
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)
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SIGNED
and DELIVERED
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)
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as
a DEED
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)
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by Hsin
Chi Su
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)
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/s/
Hsin Chi Su
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for
and on behalf of
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)
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Authorised
Signatory
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VALENCIA
DRILLING CORPORATION
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)
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SIGNED
and DELIVERED
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)
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as
a DEED
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)
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by
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)
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇
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for
and on behalf of
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)
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Authorised
Signatory
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VANTAGE
DEEPWATER COMPANY
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)
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SIGNED
and DELIVERED
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)
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as
a DEED
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)
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by Hsin
Chi Su
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)
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/s/
Hsin Chi Su
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for
and on behalf of
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)
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Authorised
Signatory
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F3
CAPITAL
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)
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6