RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
Exhibit
10.16
RIGHT
OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
This
Right of First Refusal and Corporate Opportunities Agreement (this “Agreement”)
is made as of ___________, 2008 by and between Xxxxxxxxx Asia Acquisition Corp.,
a Cayman Islands company (the “Company”) and ___________ (the “Granting
Company”) in connection with the Company’s proposed initial public offering (the
“IPO”) of units pursuant to a registration statement on Form S-1 (as amended,
the “Registration Statement”), filed by the Company with the United States
Securities and Exchange Commission.
WHEREAS,
certain officers and directors of the Company are also officers and directors
of
the Granting Company; and
WHEREAS,
each of the Company and the Granting Company may be seeking business
opportunities in the People’s Republic of China, and the parties hereto desire
to enter into this Agreement to clarify the business opportunities for which
each party shall have a right of first refusal.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements as set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Right
of First Refusal.
x. Xxxxx
of Right.
For the
term specified in Section 2 hereof, the Granting Company agrees to grant to
the
Company (i) in its certificate of incorporation or equivalent document or (ii)
by written action of its board of directors and/or shareholders, as may be
required under applicable law governing the Granting Company, expressly for
the
benefit of the Company (in either event, the “Granting Company Document”), a
right of first refusal to any corporate opportunities belonging to it that
may
constitute a suitable Business Combination (as defined herein) for the Company.
Specifically, the
Granting Company shall refuse to review or consider any investment or
acquisition opportunity in a business or businesses the Company may deem to
be a
Business Combination, as determined by the officer or director of the Granting
Company that is also an officer or director of the Company until after the
Company has rejected such opportunity. The Granting Company will not enter
into
any agreement to purchase or invest in such business or businesses until after
the Company has rejected such opportunity. Decisions
by the Company to release the Granting Company to pursue any corporate
opportunity concerning a Business Combination will be made by a majority of
the
Company’s disinterested directors.
b. Scope
of Right
. As
used herein, the term “Business Combination” shall
mean an acquisition by the Company, by merger, stock exchange, asset
acquisition, reorganization or similar business combination, or control through
contractual arrangements, of an operating business or businesses in the People’s
Republic of China
(each a
“Target”). Notwithstanding the above, the term “Business Combination” shall not
include any company with respect to which the Granting Company has initiated
any
contacts or entered into any discussions, formal or informal, or negotiations
regarding a company being acquired by the Granting Company prior to the date
hereof.
c. General.
Any
partner, principal, director, officer or employee of the Granting Company that
shall become aware of a corporate opportunity relating to a Target shall provide
written notice of the opportunity to the Company within five (5) business days
of its identification of the corporate opportunity. The Granting Company further
agrees it will not enter into any agreement to purchase or invest in a Target
until the Company has had a reasonable period of time to determine whether
or
not to pursue the opportunity. The provisions of this Section (c) shall be
set
forth in the Granting Company Document.
2. Term.
This
Agreement shall become effective upon execution and shall remain in effect
for a
period expiring upon the earlier of: (i) the consummation by the Company of
a
Business Combination or (ii) the Company’s dissolution and liquidation, each in
the circumstances and in the manner described in the Registration Statement
(the
“Term”).
3. Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
To
the
Company:
Xxxxxxxxx
Asia Acquisition Corp.
00/X
Xxxxx 0
Xxx
Xxxxx
Xxxxx
00
Xxxxxx
Xxxx Xxxxxxx
Xxxx
Xxxx
Attn:
Xxxx Xxxx, Chief Executive Officer
with
a
copy to:
Xxxxxxxx
Xxxxxxxx
Xxxx
& Xxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
If
to the
Granting Company:
[contact
information]
with
a
copy to:
[contact
information]
with
a
copy to:
Broadband
Capital Management
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
T.
Xxxxx Xxxxxx
with
a
copy to:
Xxxxxxx
Xxxxxxxx
Xxxxxxxx
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
4. Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Agreement.
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5. Severability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof, which shall remain in full force and
effect.
6. Amendment.
This
Agreement may only be amended by a written instrument executed by each of the
parties hereto. Notwithstanding the foregoing, this Agreement may not be amended
to provide for its termination prior to the expiration of the Term without
the
approval of the affirmative vote of a majority of the Company’s ordinary shares
purchased in the IPO.
7. Survival.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this
Section 7 are in addition to the survivorship provisions of any other
section of this Agreement.
8. Waiver
Against Trust Account.
Granting
Company hereby (a) waives any and all right, title, interest or claim of any
kind (a “Claim”) in or to all funds held in the trust account established for
the benefit of the public shareholders of the Company (“Trust Account”) and any
remaining net assets of the Company upon liquidation of the Trust Account and
dissolution of the Company, (b) waives any Claim the Granting Company may have
in the future as a result of, or arising out of, any contracts or agreements
with the Company and (c) agrees it will not seek recourse against the Trust
Account for any reason whatsoever.
9. Entire
Agreement.
This
Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof, and supersedes all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
10. Governing
Law, Venue, etc.
a. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to the conflict of laws
principles thereof. The parties: (i) agree that any legal suit, action or
proceeding arising out of or relating to this agreement and/or the transactions
contemplated hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York, (ii) waive any objection which such party may have now
or
hereafter to the venue of any such suit, action or proceeding and (iii)
irrevocably and exclusively consent to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding arising out of
this
Agreement.
b. The
parties further agree to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the New York
Supreme Court, County of New York, or in the United States District Court for
the Southern District of New York and agrees service of process upon the Company
mailed by certified mail to the Company’s address shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding, and service of process upon mailed by certified mail to the
Granting Company addresses shall be deemed in every respect effective service
process upon the parties, in any such suit, action or proceeding arising out
of
this Agreement.
c. THE
PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
11. Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by fax or email/.pdf
transmission shall constitute valid and sufficient delivery
thereof.
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12. Waiver,
etc.
The
failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver
of
any such provision, nor to in any way effect the validity of this Agreement
or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement
shall be effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver is sought;
and
no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
13. Third
Party Beneficiaries.
The
parties hereto hereby acknowledge that the underwriters of the IPO, including,
without limitation, Broadband Capital Management (“Broadband”), are third party
beneficiaries of this Agreement and this Agreement may not be modified or
changed without the prior written consent of Broadband.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first specified above.
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XXXXXXXXX
ASIA ACQUISITION CORP.
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Name:
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Title:
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[NAME]
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Name:
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Title:
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