INVESTMENT MANAGEMENT TRUST AGREEMENT
EXHIBIT
10.5
This Agreement is made as of
___________, 2008 by and between Asia Select Acquisition I Corp. (the
“Company”), located at 00/X.,
Xxxxx Merchants Limited, Xx. 000-000 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx,
and Continental Stock Transfer & Trust Company (“Trustee”), located at 00
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Company’s registration
statement on Form F-1, No. 333-______ (“Registration Statement”), for its
initial public offering of securities (“IPO”) has been declared effective as of
the date hereof (“Effective Date”) by the Securities and Exchange Commission
(capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Registration Statement); and
WHEREAS, EarlyBirdCapital, Inc. (“EBC”)
is acting as the representative of the underwriters in the IPO; and
WHEREAS, as described in the
Registration Statement, and in accordance with the Company’s Memorandum and
Articles of Association, $31,680,000 of the gross proceeds of the IPO and sale
of the Insider Warrants (as defined in the Registration Statement) ($36,433,000
if the underwriters over-allotment option is exercised in full) will be
delivered to the Trustee to be deposited and held in a trust account for the
benefit of the Company and the holders of the Company’s ordinary shares, par
value $.001 per share, issued in the IPO as hereinafter provided and in the
event the Units are registered in Colorado, pursuant to Section 11-51-302(6) of
the Colorado Revised Statutes. A copy of the Colorado Statute is attached hereto
and made a part hereof (the amount to be delivered to the Trustee will be
referred to herein as the “Property”; the shareholders for whose benefit the
Trustee shall hold the Property will be referred to as the “Public
Shareholders,” and the Public Shareholders and the Company will be referred to
together as the “Beneficiaries”); and
WHEREAS, the Company and the Trustee
desire to enter into this Agreement to set forth the terms and conditions
pursuant to which the Trustee shall hold the Property;
IT IS AGREED:
1. Agreements and Covenants of
Trustee. The Trustee hereby agrees and covenants
to:
(a) Hold
the Property in trust for the Beneficiaries in accordance with the terms of this
Agreement, including the terms of Section 11-51-302(6) of the Colorado Statute,
in a segregated trust account (“Trust Account”) established by the Trustee at
JPMorgan Chase Bank N.A.;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In
a timely manner, upon the instruction of the Company, to invest and reinvest the
Property in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days or
less, and/or in any open ended investment company registered under the
Investment Company Act of 1940 that holds itself out as a money market fund
selected by the Company meeting the conditions of paragraphs (c)(2), (c)(3) and
(c)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as
determined by the Company;
(d) Collect
and receive, when due, all principal and income arising from the Property, which
shall become part of the “Property,” as such term is used herein;
(e) Notify
the Company of all communications received by it with respect to any Property
requiring action by the Company;
(f) Supply
any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of its tax returns;
(g) Participate
in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company to do
so;
(h) Render
to the Company and EBC monthly written statements of the activities of and
amounts in the Trust Account reflecting all receipts and disbursements of the
Trust Account; and
(i) Commence
liquidation of the Trust Account only after and promptly after receipt of, and
only in accordance with, the terms of a letter (“Termination Letter”), in a form
substantially similar to that attached hereto as either Exhibit A or Exhibit B
hereto, signed on behalf of the Company by its President or Chairman of the
Board and Secretary or Assistant Secretary and affirmed by counsel for the
Company, and complete the liquidation of the Trust Account and distribute the
Property in the Trust Account only as directed in the Termination Letter and the
other documents referred to therein; provided, however, that in the event that a
Termination Letter has not been received by the Trustee by the 24-month
anniversary of the closing (“Closing”) of the IPO (“Last Date”), the Trust
Account shall be liquidated in accordance with the procedures set forth in the
Termination Letter attached as Exhibit B hereto and distributed to the
shareholders of record on the Last Date. The provisions of this
Section 1(i) may not be modified, amended or deleted without the prior consent
of EBC and each of the Public Shareholders.
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2. Limited Distributions of
Income from Trust Account.
(a) Upon
written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit C, the Trustee shall
distribute to the Company by wire transfer the amount requested by the Company
to cover any income tax obligation owed by the Company;
(b) Upon
written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit D, the Trustee shall
distribute to the Company by wire transfer the amount requested by the Company
to cover expenses related to investigating and selecting a target business and
other working capital requirements; provided, however, that the aggregate amount
of all such distributions shall not exceed $750,000 and the Company will not be
allowed to withdraw interest income earned on the trust account unless there is
sufficient funds available to pay the Company’s tax obligations on such interest
income or otherwise then due at that time; and
(c) The
limited distributions referred to in Sections 2(a) and 2(b) above shall be made
only from income collected on the Property. Except as provided in
Section 2(a) and 2(b) above, no other distributions from the Trust Account shall
be permitted except in accordance with Section 1(i) hereof.
(d) In
all cases, the Company shall provide EBC with a copy of any Termination Letters
and/or any other correspondence that it issues to the Trustee with respect to
any proposed withdrawal from the Trust Account promptly after such
issuance.
3. Agreements and Covenants of
the Company. The Company hereby agrees and covenants
to:
(a) Give
all instructions to the Trustee hereunder in writing, signed by the Company’s
Chairman of the Board or President. In addition, except with respect
to its duties under paragraphs 1(i), 2(a) and 2(b) above, the Trustee shall be
entitled to rely on, and shall be protected in relying on, any verbal or
telephonic advice or instruction which it in good faith believes to be given by
any one of the persons authorized above to give written instructions, provided
that the Company shall promptly confirm such instructions in
writing;
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(b) Hold
the Trustee harmless and indemnify the Trustee from and against, any and all
expenses, including reasonable counsel fees and disbursements, or loss suffered
by the Trustee in connection with any action, suit or other proceeding brought
against the Trustee involving any claim, or in connection with any claim or
demand which in any way arises out of or relates to this Agreement, the services
of the Trustee hereunder, or the Property or any income earned from investment
of the Property, except for expenses and losses resulting from the Trustee's
gross negligence or willful misconduct. Promptly after the receipt by
the Trustee of notice of demand or claim or the commencement of any action, suit
or proceeding, pursuant to which the Trustee intends to seek indemnification
under this paragraph, it shall notify the Company in writing of such claim
(hereinafter referred to as the “Indemnified Claim”). The Trustee
shall have the right to conduct and manage the defense against such Indemnified
Claim, provided, that the Trustee shall obtain the consent of the Company with
respect to the selection of counsel, which consent shall not be unreasonably
withheld. The Trustee may not agree to settle any Indemnified Claim
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. The Company may participate in such action
with its own counsel;
(c) Pay
the Trustee an initial acceptance fee, an annual fee and a transaction
processing fee for each disbursement pursuant to Section 2 which fees shall be
subject to modification by the parties from time to time. It is
expressly understood that the Property shall not be used to pay such
fee. The Company shall pay the Trustee the initial acceptance fee and
first annual fee at the consummation of the IPO and thereafter on the
anniversary of the Effective Date. The Trustee shall refund to the
Company the fee (on a pro rata basis) with respect to any period after the
liquidation of the Trust Fund. The Company shall not be responsible
for any other fees or charges of the Trustee except as may be provided in
paragraph 3(b) hereof (it being expressly understood that the Property shall not
be used to make any payments to the Trustee under such paragraph);
(d) In
connection with any vote of the Company’s shareholders regarding a Business
Combination, provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and/or tabulating
shareholder votes (which firm may be the Trustee) verifying the vote of the
Company’s shareholders regarding such Business Combination; and
(e) In
connection with the Trustee acting as Paying/Disbursing Agent pursuant to
Exhibit B, the Company will not give the Trustee disbursement instructions which
would be prohibited under this Agreement or give the Trustee instructions to
make any payment that is not specifically authorized by this
Agreement.
4. Limitations of
Liability. The Trustee shall have no responsibility or
liability to:
(a) Imply
obligations, perform duties, inquire or otherwise be subject to the provisions
of any agreement or document other than this agreement and that which is
expressly set forth herein;
(b) Take
any action with respect to the Property, other than as directed in paragraphs 1
and 2 hereof and the Trustee shall have no liability to any party except for
liability arising out of its own gross negligence or willful
misconduct;
4
(c) Institute
any proceeding for the collection of any principal and income arising from, or
institute, appear in or defend any proceeding of any kind with respect to, any
of the Property unless and until it shall have received instructions from the
Company given as provided herein to do so and the Company shall have advanced or
guaranteed to it funds sufficient to pay any expenses incident
thereto;
(d) Change
the investment of any Property, other than in compliance with paragraph
1(c);
(e) Refund
any depreciation in principal of any Property;
(f) Assume
that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation,
or unless the Company shall have delivered a written revocation of such
authority to the Trustee;
(g) The
other parties hereto or to anyone else for any action taken or omitted by it, or
any action suffered by it to be taken or omitted, in good faith and in the
exercise of its own best judgment, except for its gross negligence or willful
misconduct. The Trustee may rely conclusively and shall be protected
in acting upon any order, notice, demand, certificate, opinion or advice of
counsel (including counsel chosen by the Trustee), statement, instrument, report
or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability
of any information therein contained) which is believed by the Trustee, in good
faith, to be genuine and to be signed or presented by the proper person or
persons. The Trustee shall not be bound by any notice or demand, or
any waiver, modification, termination or rescission of this Agreement or any of
the terms hereof, unless evidenced by a written instrument delivered to the
Trustee signed by the proper party or parties and, if the duties or rights of
the Trustee are affected, unless it shall give its prior written consent
thereto;
(h) Verify
the correctness of the information set forth in the Registration Statement or to
confirm or assure that any acquisition made by the Company or any other action
taken by it is as contemplated by the Registration Statement; and
(i) File
local, state and/or Federal tax returns or information returns with any taxing
authority on behalf of the Trust Account and payee statements with the Company
documenting the taxes, if any, payable by the Company or the Trust Account,
relating to the income earned on the Property.
(j) Pay
any taxes on behalf of the Trust Account (it being expressly understood that the
Property shall not be used to pay any such taxes and that such taxes, if any,
shall be paid by the Company from funds not held in the Trust
Account).
5
5. Termination. This
Agreement shall terminate as follows:
(a) If
the Trustee gives written notice to the Company that it desires to resign under
this Agreement, the Company shall use its reasonable efforts to locate a
successor trustee. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed to
become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; provided, however,
that, in the event that the Company does not locate a successor trustee within
ninety days of receipt of the resignation notice from the Trustee, the Trustee
may submit an application to have the Property deposited with any court in the
State of New York or with the United States District Court for the Southern
District of New York and upon such deposit, the Trustee shall be immune from any
liability whatsoever; or
(b) At
such time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of paragraph 1(i) hereof, and distributed the
Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate except with respect to Paragraph 3(b).
5. Miscellaneous.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the
procedures set forth below with respect to funds transferred from the Trust
Account. Upon receipt of written instructions, the Trustee will confirm such
instructions with an Authorized Individual at an Authorized Telephone Number
listed on the attached Exhibit E. In executing funds transfers, the Trustee will
rely upon all information of a beneficiary, beneficiary's bank or intermediary
bank. The Trustee shall not be liable for any loss, liability or
expense resulting from any error in an account number or other identifying
number.
(b) 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 conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. It may be executed in several original or
facsimile counterparts, each one of which shall constitute an original, and
together shall constitute but one instrument.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. Except for Section 1(i),
this Agreement or any provision hereof may only be changed, amended or modified
by a writing signed by each of the parties hereto; provided, however, that no
such change, amendment or modification may be made without the prior written
consent of EBC. As to any claim, cross-claim or counterclaim in any
way relating to this Agreement, each party waives the right to trial by jury.
Each of
the Company and the Trustee hereby acknowledge that EBC and the Public
Shareholders are third party beneficiaries of this Agreement and Section 1(i) of
this agreement may not be modified, amended or deleted without the prior written
consent of EBC and each of the Public Shareholders.
6
(d) The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York, Borough of Manhattan, for purposes of
resolving any disputes hereunder.
(e) Any
notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and shall be sent by express
mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
if to the Trustee, to:
Continental Stock
Transfer
& Trust
Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X.
Xxxxxx
Fax No.: (000)
000-0000
if to the Company, to:
00/X.,
Xxxxx Merchants Limited
Xx.
000-000 Xxx Xxxxx Xxxx Xxxxxxx
Xxxx
Xxxx
Attn: Xxxxxxx X. Xxxxx,
Chief Executive Officer
Fax No.: (___)
___-____
in either case with a copy
to:
EarlyBirdCapital, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx
0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx,
Chairman
Fax No.: (000)
000-0000
(f) This
Agreement may not be assigned by the Trustee without the prior consent of the
Company.
7
(g) Each
of the Trustee and the Company hereby represents that it has the full right and
power and has been duly authorized to enter into this Agreement and to perform
its respective obligations as contemplated hereunder. The Trustee
acknowledges and agrees that it shall not make any claims or proceed against the
Trust Account, including by way of set-off, and shall not be entitled to any
funds in the Trust Account under any circumstance. In the event that the Trustee
has a claim against the Company under this Agreement, the Trustee will pursue
such claim solely against the Company and not against the Property held in the
Trust Account.
8
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management Trust
Agreement as of the date first written above.
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CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY,
as Trustee
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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9
SCHEDULE
A
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Fee
Item
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Time
and method of payment
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Amount
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||||
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Initial
acceptance fee
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Initial
closing of IPO by wire transfer
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$ | 1,000 | |||
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Annual
fee
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First
year, initial closing of IPO by wire transfer; thereafter on the
anniversary of the effective date of the IPO by wire transfer or
check
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$ | 3,000 | |||
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Transaction
processing fee for disbursements to Company under Section
2
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Deduction
by Trustee from accumulated income following disbursement made to Company
under Section 2
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$ | 250 | |||
10
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No. - Termination
Letter
Gentlemen:
Pursuant to paragraph 1(i) of the
Investment Management Trust Agreement between Asia Select Acquisition I Corp.
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of _________, 2008 (“Trust Agreement”), this is to advise you that the
Company has entered into an agreement (“Business Agreement”) with
__________________ (“Target Business”) to consummate a business combination with
Target Business (“Business Combination”) on or about [insert date]. The
Company shall notify you at least 48 hours in advance of the actual date of the
consummation of the Business Combination (“Consummation Date”).
In accordance with the terms of the
Trust Agreement, we hereby authorize you to commence liquidation of the Trust
Account to the effect that, on the Consummation Date, all of funds held in the
Trust Account will be immediately available for transfer to the account or
accounts that the Company shall direct on the Consummation Date.
On the Consummation Date (i) counsel
for the Company shall deliver to you written notification that the Business
Combination has been consummated and (ii) the Company shall deliver to you (a)
[an affidavit] [a certificate] of __________________, which verifies the vote of
the Company’s shareholders in connection with the Business Combination and (b)
written instructions with respect to the transfer of the funds held in the Trust
Account (“Instruction Letter”). You are hereby directed and
authorized to transfer the funds held in the Trust Account immediately upon your
receipt of the counsel's letter and the Instruction Letter, in accordance with
the terms of the Instruction Letter. In the event that certain
deposits held in the Trust Account may not be liquidated by the Consummation
Date without penalty, you will notify the Company of the same and the Company
shall direct you as to whether such funds should remain in the Trust Account and
distributed after the Consummation Date to the Company. Upon the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
11
In the event that the Business
Combination is not consummated on the Consummation Date described in the notice
thereof and we have not notified you on or before the original Consummation Date
of a new Consummation Date, then upon receipt by the Trustee of written
instructions from the Company, the funds held in the Trust Account shall be
reinvested as provided in the Trust Agreement on the business day immediately
following the Consummation Date as set forth in the notice.
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Very
truly yours,
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By:
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Xxxxxxx
X. Xxxxx, Chief Executive Officer
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By:
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Min
Xxxxx, Secretary
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cc:
EarlyBirdCapital, Inc.
12
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Re: Trust Account
No. - Termination
Letter
Gentlemen:
Pursuant to paragraph 1(i) of the
Investment Management Trust Agreement between Asia Select Acquisition I Corp.
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of ________, 2008 (“Trust Agreement”), this is to advise you that the
Company has been unable to effect a Business Combination with a Target Company
within the time frame specified in the Company’s Memorandum and Articles of
Association, as described in the Company’s prospectus relating to its
IPO.
In accordance with the terms of the
Trust Agreement, we hereby (a) certify to you that the provisions of Section
11-51-302(6) and Rule 51-3.4 of the Colorado Statute have been met and (b)
authorize you, to commence liquidation of the Trust Account as promptly as
practicable to shareholders of record on the Last Date (as defined in the Trust
Agreement). You will notify the Company in writing as to when all of
the funds in the Trust Account will be available for immediate transfer
(“Transfer Date”) in accordance with the terms of the Trust Agreement and the
Memorandum and Articles of Association of the Company. You shall
commence distribution of such funds directly to the Company’s shareholders
(other than with respect to the initial shares, as defined in the Company’s
Prospectus, dated ________, 2008) in accordance with the terms of the Trust
Agreement and the Memorandum and Articles of Association of the Company and you
shall oversee the distribution of the funds. Upon the distribution of
all the funds in the Trust Account, your obligations under the Trust Agreement
shall be terminated.
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Very
truly yours,
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By:
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Xxxxxxx
X. Xxxxx, Chief Executive Officer
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By:
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Min
Xxxxx,
Secretary
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cc:
EarlyBirdCapital, Inc.
13
EXHIBIT
C
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No.
Gentlemen:
Pursuant to paragraph 2(a) of the
Investment Management Trust Agreement between Asia Select Acquisition I Corp.
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of ___________, 2008 (“Trust Agreement”), the Company hereby requests
that you deliver to the Company $_______ of the income earned on the Property as
of the date hereof. The Company needs such funds to pay for the tax
obligations as set forth on the attached tax return or tax
statement. In accordance with the terms of the Trust Agreement, you
are hereby directed and authorized to transfer (via wire transfer) such funds
promptly upon your receipt of this letter to the Company’s operating account
at:
[WIRE
INSTRUCTION INFORMATION]
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By:
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Xxxxxxx
X. Xxxxx, Chief Executive Officer
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By:
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Min
Xxxxx, Secretary
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cc:
EarlyBirdCapital, Inc.
14
EXHIBIT
D
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No.
Gentlemen:
Pursuant to paragraph 2(b) of the
Investment Management Trust Agreement between Asia Select Acquisition I Corp.
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of __________, 2008 (“Trust Agreement”), the Company hereby requests
that you deliver to the Company $_______ of the income earned on the Property as
of the date hereof, which does not exceed, in the aggregate with all such prior
disbursements pursuant to paragraph 2(b), if any, the maximum amount set forth
in paragraph 2(b). The Company needs such funds to cover its expenses
relating to investigating and selecting a target business and other working
capital requirements. In accordance with the terms of the Trust
Agreement, you are hereby directed and authorized to transfer (via wire
transfer) such funds promptly upon your receipt of this letter to the Company’s
operating account at:
[WIRE
INSTRUCTION INFORMATION]
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Very
truly yours,
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ASIA
SELECT ACQUISITION I CORP.
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By:
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Xxxxxxx
X. Xxxxx, Chief Executive Officer
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By:
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Min
Xxxxx, Secretary
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cc:
EarlyBirdCapital, Inc.
15
EXHIBIT
E
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AUTHORIZED
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FOR
TELEPHONE CALL BACK
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TELEPHONE
NUMBER(S)
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Company:
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Asia
Select Acquisition I Corp.
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00/X.,
Xxxxx Merchants Limited
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Xx.
000-000 Xxx Xxxxx Xxxx Xxxxxxx
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Xxxx
Xxxx
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Attn: Xxxxxxx
X. Xxxxx, Chief Executive Officer
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(000)
00000000
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Trustee:
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Continental
Stock Transfer
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&
Trust Company
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00
Xxxxxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn: Xxxxxx
X. Xxxxxx, Chairman
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(000)
000-0000
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16
