THE REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL,...
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES
THAT
IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN
PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT
IT WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION
UNTIL
JULY 16, 2009 [18
MONTHS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW)]
IN ACCORDANCE WITH FINRA RULE 2710(g)(1) TO ANYONE OTHER THAN (I) MAXIM
GROUP
LLC AND ITS AFFILIATES ("MAXIM") OR AN UNDERWRITER OR A SELECTED DEALER
IN
CONNECTION WITH THE OFFERING (DEFINED HEREIN), OR (II) A BONA FIDE OFFICER,
PARTNER OR EMPLOYEE OF MAXIM OR OF ANY SUCH UNDERWRITER OR SELECTED
DEALER.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE CONSUMMATION BY ASIA SPECIAL
SITUATION ACQUISITION CORP. ("COMPANY") OF A CAPITAL STOCK EXCHANGE, ASSET
OR
STOCK ACQUISITION, CONTRACTUAL ARRANGEMENT IN WHICH THE COMPANY ACQUIRES
CONTROL
OF A TARGET BUSINESS OR OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS
COMBINATION") (AS DESCRIBED MORE FULLY IN THE COMPANY'S REGISTRATION STATEMENT.
THIS PURCHASE OPTION SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME, JANUARY
16,
2013.
UNIT
PURCHASE OPTION
FOR
THE PURCHASE OF
380,000
UNITS
OF
THIS
CERTIFIES THAT, in consideration of $100 duly paid by or on behalf of Maxim
Partners, LLC (collectively, with its successors and permitted assigns
and/or
transferees, the "Holder"), as registered owner of this Purchase Option,
to Asia
Special Situation Acquisition Corp. (the "Company"), Holder is entitled,
at any
time or from time to time after the consummation of a Business Combination
("Commencement Date"), and at or before 5:00 p.m., Eastern Time, January
16,
2013 ("Expiration Date"), but not thereafter, to subscribe for, purchase
and
receive, in whole or in part, up to Three Hundred Eighty Thousand (380,000)
units (the "Units") of the Company, each Unit consisting of one ordinary
share
of the Company, par value $0.0001 per share (the "Ordinary Shares"), and
one
warrant (the "Warrant") expiring four (4) years from the effective date
("Effective Date") of the registration statement ("Registration Statement")
pursuant to which Units are offered for sale to the public (the "Offering").
Each Warrant contains the same terms and conditions as the warrants included
in
the Units being registered for sale to the public by way of the Registration
Statement (the "Public Warrants"), including that the Warrants underlying
the
Units comprising this Purchase Option which have an exercise price of $7.50
per
share. If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Purchase Option may be exercised
on the
next succeeding day which is not such a day in accordance with the terms
herein.
During the period ending on the Expiration Date, the Company agrees not
to take
any action that would terminate the Purchase Option. This Purchase Option
is
initially exercisable at $12.50 per Unit so purchased; provided, however,
that
upon the occurrence of any of the events specified in Section 6 hereof,
the
rights granted by this Purchase Option, including the exercise price per
Unit
and the number of Units (and Ordinary
Shares
and Warrants) to be received upon such exercise, shall be adjusted as therein
specified. The term "Exercise Price" shall mean the initial exercise price
or
the adjusted exercise price, depending on the context.
2.1
Exercise Form. In order to exercise this Purchase Option, the exercise
form
attached hereto must be duly executed and completed and delivered to the
Company, together with this Purchase Option and payment of the Exercise
Price for the Units being purchased payable in cash or by certified check
or
official bank check. If the subscription rights represented hereby shall
not be
exercised at or before 5:00 p.m., New York City Time, on the Expiration
Date,
this Purchase Option shall become and be void without further force or
effect,
and all rights represented hereby shall cease and expire.
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT") OR APPLICABLE STATE LAW. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED,
IN WHOLE
OR IN PART, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE
STATE LAW."
2.3
Cashless Exercise. In lieu of the payment of the Exercise Price multiplied
by
the number of Units for which this Purchase Option is exercisable (and
in lieu
of being entitled to receive Ordinary
Shares
and Warrants) in the manner required by Section 2.1, the Holder shall have
the
right (but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units (the "Conversion Right") as
follows:
upon exercise of the Conversion Right, the Company shall deliver to the
Holder
(without payment by the Holder of any of the Exercise Price in cash) that
number
of Ordinary
Shares
and Warrants comprising that number of Units equal to the quotient obtained
by
dividing (x) the "Value" (as defined below) of the portion of the Purchase
Option being converted by (y) the Current Market Value (as defined below)
of the
portion of the Purchase Option being converted. The "Value" of the portion
of
the Purchase Option being converted shall equal the remainder derived from
subtracting (a) (i) the Exercise Price multiplied by (ii) the number of
Units
underlying the portion of this Purchase Option being converted from (b)
the
Current Market Value of a Unit multiplied by the number of Units underlying
the
portion of the Purchase Option being converted. As used herein, the term
"Current Market Value" per Unit at any date means: (A) in the event that
neither
the Units nor Warrants are still trading, the remainder derived from subtracting
(x) the exercise price of the Warrants multiplied by the number of Ordinary
Shares
issuable upon exercise of the Warrants underlying one Unit from (y) (i)
the
Current Market Price of the Ordinary
Shares
multiplied by (ii) the number of Ordinary
Shares
underlying one Unit, which shall include the Ordinary
Shares
underlying the Warrants included in such Unit; (B) in the event that the
Units,
Ordinary
Shares
and Public Warrants are still trading, (i) if the Units are listed on a
national
securities exchange or quoted on the Nasdaq Global Select Market, Nasdaq
Global
Market, Nasdaq Capital Market or OTC Bulletin Board (or successor such
as the
Bulletin Board Exchange), the last sale price of the Units in the principal
trading market for the Units as reported by the exchange, Nasdaq or the
FINRA,
as the case may be, on the last trading day preceding the date in question;
or
(ii) if the Units are not listed on a national securities exchange or quoted
on
the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market
or
the OTC Bulletin Board (or successor exchange), but is traded in the residual
over-the-counter market, the closing bid price for Units on the last trading
day
preceding the date in question for which such quotations are reported by
the
Pink Sheets, LLC or similar publisher of such quotations; and (C) in the
event
that the Units are not still trading but the Ordinary
Shares
and Warrants underlying the Units are still trading, the Current Market
Price of
the Ordinary
Shares
plus the product of (x) the Current Market Price of the Warrants and (y)
the
number of Ordinary
Shares
underlying the Warrants included in one Unit. The "Current Market Price"
shall
mean (i) if the Ordinary
Shares
(or Warrants, as the case may be) is listed on a national securities exchange
or
quoted on the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq
Capital
Market or OTC Bulletin Board (or successor such as the Bulletin Board Exchange),
the last sale price of the Ordinary
Shares
(or Warrants) in the principal trading market for the Ordinary
Shares
as reported by the exchange, Nasdaq or the FINRA, as the case may be, on
the
last trading day preceding the date in question; (ii) if the Ordinary
Shares
(or Warrants, as the case may be) is not listed on a national securities
exchange or quoted on the Nasdaq Global Select Market, Nasdaq Global Market,
Nasdaq Capital Market or the OTC Bulletin Board (or successor exchange),
but is
traded in the residual over-the-counter market, the closing bid price for
the
Ordinary
Shares
(or Warrants) on the last trading day preceding the date in question for
which
such quotations are reported by the Pink Sheets, LLC or similar publisher
of
such quotations; and (iii) if the fair market value of the Ordinary
Shares
cannot be determined pursuant to clause (i) or (ii) above, such price as
the
Board of Directors of the Company shall determine, in good faith. In the
event
the Public Warrants have expired and are no longer exercisable, no "Value"
shall
be attributed to the Warrants underlying this Purchase Option. Additionally,
in
the event that this Purchase Option is exercised pursuant to this Section
2.3
and the Public Warrants are still trading, the "Value" shall be reduced
by the
difference between the Warrant Exercise Price and the exercise price of
the
Public Warrants multiplied by the number of Warrants underlying the Units
included in the portion of this Purchase Option being converted.
2.5
No Net Cash Settlements or Damages Upon Failure of Registration. In no
event
shall the registered Holder of this Purchase Option be entitled to (i)
net cash
settlement of this Purchase Option or the Warrants underlying the Purchase
Option, regardless of whether any or all of the Registrable Securities
have been
registered by the Company pursuant to an effective registration statement,
or
(ii) receive
any damages if any or all of the Registrable Securities have not been registered
by the Company pursuant to an effective registration statement, subject
to the
requirement that the Company use its best efforts to have a registration
statement or post-effective amendment declared effective as soon as possible
after receiving the Initial Demand Notice.
The holder of the Warrants underlying the Purchase Option will not be entitled
to exercise the Warrants underlying such Purchase Option unless a registration
statement is effective, or an exemption from the registration requirements
is
available at such time and, if the holder does not, or is not able to,
exercise
the Warrants underlying the Purchase Option the Warrants will expire worthless.
3.1
General Restrictions. The registered Holder of this Purchase Option, by
its
acceptance hereof, agrees that it will not sell, transfer, assign, pledge
or
hypothecate this Purchase Option, or the securities issuable upon exercise
of
the Purchase Option, until July 16, 2009 [18
months following the Effective Date] in
accordance with FINRA Rule 2710(g)(1) to anyone other than (i) Maxim or
an
underwriter or a selected dealer in connection with the Offering, or (ii)
a bona
fide officer or partner of Maxim or of any such underwriter or selected
dealer.
On and after July 16, 2009 [18
months from the Effective Date],
transfers to others may be made subject to compliance with or exemptions
from
applicable securities laws. In order to make any permitted assignment,
the
Holder must deliver to the Company the assignment form attached hereto
duly
executed and completed, together with the Purchase Option and payment of
all
transfer taxes, if any, payable in connection therewith. The Company shall
within five business days transfer this Purchase Option on the books of
the
Company and shall execute and deliver a new Purchase Option or Purchase
Options
of like tenor to the appropriate assignee(s) expressly evidencing the right
to
purchase the aggregate number of Units purchasable hereunder or such portion
of
such number as shall be contemplated by any such assignment.
3.2
Restrictions Imposed by the Act. The securities evidenced by this Purchase
Option shall not be transferred unless and until (i) the Company has received
the opinion of counsel for the Holder that the securities may be transferred
pursuant to an exemption from registration under the Act and applicable
state
securities laws, the availability of which is established to the reasonable
satisfaction of the Company (the Company hereby agreeing that the opinion
of
Xxxxxxxxxx & Xxxxx LLP shall be deemed satisfactory evidence of the
availability of an exemption), or (ii) a registration statement or a
post-effective
amendment to the Registration Statement relating to such securities has
been
filed by the Company and declared effective by the Securities and Exchange
Commission (βSECβ) and compliance with applicable state securities law has been
established.
4.1
Partial Exercise or Transfer. Subject to the restrictions in Section 3
hereof,
this Purchase Option may be exercised or assigned in whole or in part.
In the
event of the exercise or assignment hereof in part only, upon surrender
of this
Purchase Option for cancellation, together with the duly executed exercise
or
assignment form and, except in the case of an exercise of this Purchase
Option
contemplated by Section 2.3 hereof, funds sufficient to pay any Exercise
Price
and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Purchase Option of like tenor to this Purchase
Option in the name of the Holder evidencing the right of the Holder to
purchase
the number of Units purchasable hereunder as to which this Purchase Option
has
not been exercised or assigned.
5.1.1
Grant of Right. The Company, upon written demand (an "Initial Demand Notice")
of
the holder(s) of at least an aggregate of 51% of all outstanding Purchase
Options issued by the Company and/or the underlying Units and/or the underlying
securities (the "Majority Holders"), agrees to use its best efforts to
register
on one occasion, all or any portion of
the Purchase Options requested by the Majority Holders in the Initial Demand
Notice and all of the securities underlying such Purchase Options, including
the
Units, Ordinary
Shares,
the Warrants and the Ordinary
Shares
underlying the Warrants(collectively, the "Registrable Securities"). On
such
occasion, the Company will use its best efforts to file a registration
statement
or a post-effective amendment to the Registration Statement covering the
Registrable Securities within sixty days after receipt of the Initial Demand
Notice and use its best efforts to have such registration statement or
post-effective amendment declared effective as soon as possible thereafter.
The
demand for registration may be made at any time during a period of five
years
beginning on the Effective Date. The Initial Demand Notice shall specify
the
number of shares of Registrable Securities proposed to be sold and the
intended
method(s) of distribution thereof. The Company will notify all holders
of the
Purchase Options and/or Registrable Securities of the demand within ten
days
from the date of the receipt of any such Initial Demand Notice. Each holder
of
Registrable Securities who wishes to include all or a portion of such holder's
Registrable Securities in the Demand Registration (each such holder including
shares of Registrable Securities in such registration, a "Demanding Holder")
shall so notify the Company within fifteen (15) days after the receipt
by the
holder of the notice from the Company. Upon any such request, the Demanding
Holders shall be entitled to have their Registrable Securities included
in the
Demand Registration, subject to Section 5.2.1.
5.1.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting commissions.
The
Company agrees to use its reasonable
best efforts to qualify or register the Registrable Securities in such
States as
are reasonably requested by the Majority Holder(s); provided, however,
that in
no event shall the Company be required to register the Registrable Securities
in
a State in which such registration would cause (i) the Company to be obligated
to qualify to do business in such State, or would subject the Company to
taxation as a foreign corporation doing business in such jurisdiction or
(ii)
the principal stockholders of the Company to be obligated to escrow their
shares
of capital stock of the Company. The Company shall use its
best efforts to cause any registration statement or post-effective amendment
filed pursuant to the demand rights granted under Section 5.1.1 to remain
effective for a period of nine (9) months from the effective date of such
registration statement or post-effective amendment.
5.2
"Piggy-Back" Registration.
5.2.1
Grant of Right. In addition to the demand right of registration, the Holders
of
the Purchase Options shall have the right for a period of seven years commencing
on the Effective Date, to include the Registrable Securities as part of
any
other registration of securities filed by the Company (other than in connection
with a transaction contemplated by Rule 145(a) promulgated under the Act
or
pursuant to Form S-8); provided, however, that if, in the written opinion
of the
Company's managing underwriter or underwriters, if any, for such offering,
the
inclusion of the Registrable Securities, when added to the securities being
registered by the Company or the selling stockholder(s), will exceed the
maximum
amount of the Company's securities (the "Maximum Number of Shares") which
can be
marketed (i) at a price reasonably related to their then current market
value,
and (ii) without materially and adversely affecting the entire offering,
then
the Company shall include
in any such registration:
(i)
If the registration is undertaken for the Company's account: (A) first,
the
Ordinary
Shares
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (B) second, to the extent that
the
Maximum Number of Shares has not been reached under the foregoing clause
(A),
the Ordinary
Shares,
if any, including the Registrable Securities, as to which registration
has been
requested pursuant to written contractual piggy-back registration rights
of
security holders (pro rata in accordance with the number of Ordinary
Shares
which each such person has actually requested to be included in such
registration, regardless of the number of Ordinary
Shares
with respect to which such persons have the right to request such inclusion)
that can be sold without exceeding the Maximum Number of Shares;
and
(ii)
If the registration is a "demand" registration undertaken at the demand
of
persons other than the holders of Registrable Securities pursuant to written
contractual arrangements with such persons, (A) first, the Ordinary
Shares
for the account of the demanding persons that can be sold without exceeding
the
Maximum Number of Shares; (B) second, to the extent that the Maximum Number
of
Shares has not been reached under the foregoing clause (A), the Ordinary
Shares
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; and (C) third, to the extent that
the
Maximum Number of Shares has not been reached under the foregoing clauses
(A)
and (B), the Registrable Securities as to which registration has been requested
under this Section 5.2 (pro rata in accordance with the number of shares
of
Registrable Securities held by each such holder); and (D) fourth, to the
extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the Ordinary
Shares
if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which other shareholders desire
to
sell that can be sold without exceeding the Maximum Number of
Shares.
5.2.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting commissions
related to the Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the then Holders of outstanding
Registrable Securities with not less than fifteen days written notice prior
to
the proposed date of filing of such registration statement.
Such notice to the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the Purchase Option
is
exercisable) by the Company until such time as all of the Registrable Securities
have been registered and sold. The holders of the Registrable Securities
shall
exercise the "piggy-back" rights provided for herein by giving written
notice,
within ten days of the receipt of the Company's notice of its intention
to file
a registration statement. The Company shall use its best efforts to cause
any
registration statement filed pursuant to the above "piggyback" rights to
remain
effective for at least nine months from the date that the Holders of the
Registrable Securities are first given the opportunity to sell all of such
securities. The Company agrees, at its sole expenses, to use its reasonable
best
efforts to qualify or register the Registrable Securities in such States
as are
reasonably requested by the Majority Holder(s); provided, however,
that in no event shall the Company be required to register the Registrable
Securities in a State in which such registration would cause (i) the Company
to
be obligated to qualify to do business in such State, or would subject
the
Company to taxation as a foreign corporation doing business in such jurisdiction
or (ii) the principal stockholders of the Company to be obligated to escrow
their shares of capital stock of the Company.
5.3.1
Indemnification. The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement hereunder
and each
person, if any, who controls such Holders within the meaning of Section
15 of
the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
(the
"Exchange Act"), and any of their
respective heirs, successors, permitted assigns and transfers, and agents
and
representatives, against all loss, claim, damage, expense or liability
(including all reasonable attorneys' fees and other expenses reasonably
incurred
in investigating, preparing or defending against litigation, commenced
or
threatened, or any claim whatsoever whether arising out of any action between
the underwriter and the Company or between the underwriter and any third
party
or otherwise) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement but
only to
the same extent and with the same effect as the provisions pursuant to
which the
Company has agreed to indemnify the underwriters contained in Section 5.1
of the
Underwriting Agreement between the Company, Maxim and the other underwriters
named therein dated the Effective Date. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the
Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to
which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement
to
the same extent and with the same effect as the provisions contained in
Section
5.2 of the Underwriting Agreement pursuant to which the underwriters have
agreed
to indemnify the Company.
5.3.3
Documents Delivered to Holders. The Company shall furnish Maxim, as
representative of the Holders participating in any of the foregoing offerings,
a
signed counterpart, addressed to the participating Holders, of (i) an opinion
of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an
opinion
dated the date of the closing under any underwriting agreement related
thereto),
and (ii) a "cold comfort" letter dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
a
letter dated the date of the closing under the underwriting agreement)
signed by
the independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to Maxim,
as
representative of the Holders participating in the offering, the correspondence
and memoranda described below and copies of all correspondence between
the
Commission and the Company, its counsel or auditors and all memoranda relating
to discussions with the Commission or its staff with respect to the registration
statement and permit Maxim, as representative of the Holders, to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the Financial
Industry Regulatory Authority (the "FINRA"). Such investigation shall include
access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all
to such
reasonable extent and at such reasonable times and as often as Maxim, as
representative of the Holders, shall reasonably request. The Company shall
not
be required to disclose any confidential information or other records to
Maxim,
as representative of the Holders, or to any other person, until and unless
such
persons shall have entered into reasonable confidentiality agreements (in
form
and substance reasonably satisfactory to the Company), with the Company
with
respect thereto.
5.3.4
Underwriting Agreement. The Company shall enter into an underwriting agreement
with the managing underwriter(s), if any, selected by any Holders whose
Registrable Securities are being registered pursuant to this Section 5,
which
managing underwriter shall be reasonably acceptable to the Company. Such
agreement shall be reasonably satisfactory in form and substance to the
Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other
terms as
are customarily contained in agreements of that type used by the managing
underwriter. The Holders shall be parties to any underwriting agreement
relating
to an underwritten sale of their Registrable Securities and may, at their
option, require that any or all the representations, warranties and covenants
of
the Company to or for the benefit of such underwriters shall also be made
to and
for the benefit of such Holders. Such Holders shall not be required to
make any
representations or warranties to or agreements with the Company or the
underwriters except as they may relate to such Holders and their intended
methods of distribution. Such Holders, however, shall agree to such covenants
and indemnification and contribution obligations for selling stockholders
as are
customarily contained in agreements of that type used by the managing
underwriter. Further, such Holders shall execute appropriate custody agreements
and otherwise cooperate fully in the preparation of the registration statement
and other documents relating to any offering in which they include securities
pursuant to this Section 5. Each Holder shall also furnish to the Company
such
information regarding itself, the Registrable Securities held by it, and
the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registrable
Securities.
5.3.5
Rule 144 Sale. Notwithstanding anything contained in this Section 5 to
the
contrary, the Company shall have no obligation pursuant to Sections 5.1
or 5.2
to use its best efforts to obtain the registration of Registrable Securities
held by any Holder (i) where such Holder would then be entitled to sell
under
Rule 144 within any three month period (or such other period prescribed
under
Rule 144 as may be provided by amendment thereof) all of the Registrable
Securities held by such Holder, and (ii) where the number of Registrable
Securities held by such Holder is within the volume limitations
under paragraph (e) of Rule 144 (calculated as if such Holder were an affiliate
within the meaning of Rule 144).
5.3.6
Supplemental Prospectus. Each Holder agrees, that upon receipt of any notice
from the Company of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading in light of the circumstances then existing, such Holder will
immediately discontinue disposition of Registrable Securities pursuant
to the
Registration Statement covering such Registrable Securities until
such Xxxxxx's receipt of the copies of a supplemental or amended prospectus,
and, if so desired by the Company, such Holder shall deliver to the Company
(at
the expense of the Company) or destroy (and deliver to the Company a certificate
of such destruction) all copies, other than permanent file copies then
in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
6.1.1
Stock Dividends - Split-Ups. If after the date hereof, and subject to the
provisions of this Section 6, the number of outstanding Ordinary
Shares
is increased by a stock dividend payable in Ordinary
Shares
or by a split-up of Ordinary
Shares
or other similar event, then, on the effective date thereof, the number
of
Ordinary
Shares
underlying each of the Units purchasable hereunder shall be increased in
proportion to such increase in outstanding shares. In such case, the number
of
Ordinary
Shares,
and the exercise price applicable thereto, underlying the Warrants underlying
each of the Units purchasable hereunder shall be adjusted in accordance
with the
terms of the Warrants. For example, if the Company declares a two-for-one
stock
dividend and at the time of such dividend this Purchase Option is for the
purchase of one Unit at $12.50 per whole Unit (the Warrant underlying the
Unit
is exercisable for $7.50 per share), upon effectiveness of the dividend,
this
Purchase Option will be adjusted to allow for the purchase of one Unit
at $12.50
per Unit, each Unit entitling the holder to receive two Ordinary
Shares
and two Warrants (each Warrant exercisable for $3.75 per share).
6.1.2
Aggregation of Shares. If after the date hereof, and subject to the provisions
of Section 6.4, the number of outstanding Ordinary
Shares
is decreased by a consolidation, combination or reclassification of Ordinary
Shares
or other similar event, then, on the effective date thereof, the number
of
Ordinary
Shares
underlying each of the Units purchasable hereunder shall be decreased in
proportion to such decrease in outstanding shares. In such case, the number
of
Ordinary
Shares,
and the exercise price applicable thereto, underlying the Warrants underlying
each of the Units purchasable hereunder shall be adjusted in accordance
with the
terms of the Warrants.
6.1.3
Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding Ordinary
Shares
other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely
affects the par value of such Ordinary
Shares,
or in the case of any merger or consolidation of the Company with or into
another corporation (other than a consolidation or merger in which the
Company
is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding Ordinary
Shares),
or in the case of any sale or conveyance to another corporation or entity
of the
property of the Company in its entirety or substantially in its entirety
in
connection with which the Company is dissolved, the Holder of this Purchase
Option shall have the right thereafter (until the expiration of the right
of
exercise of this Purchase Option) to receive upon the exercise hereof,
for the
same aggregate Exercise Price payable hereunder immediately prior to such
event,
the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such reclassification, reorganization,
merger
or consolidation, or upon a dissolution following any such sale or transfer,
by
a Holder of the number of Ordinary
Shares
of the Company obtainable upon exercise of this Purchase Option and the
underlying Warrants immediately prior to such event; and if any reclassification
also results in a change in Ordinary
Shares
covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant
to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this
Section
6.1.3 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
6.2
Substitute Purchase Option. In case of any consolidation of the Company
with, or
merger of the Company with, or merger of the Company into, another corporation
(other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Ordinary
Shares),
the corporation formed by such consolidation or merger shall execute and
deliver
to the Holder a supplemental Purchase Option providing that the holder
of each
Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Option) to receive,
upon exercise of such Purchase Option, the kind and amount of shares of
stock
and other securities and property receivable upon such consolidation or
merger,
by a holder of the number of Ordinary
Shares
of the Company for which such Purchase Option might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental Purchase Option shall provide for adjustments which shall
be
identical to the adjustments provided in Section
6. The above provision of this Section shall similarly apply to successive
consolidations or mergers.
6.3
Elimination of Fractional Interests. The Company shall not be required
to issue
certificates representing fractions of Ordinary
Shares
or Warrants upon the exercise of the Purchase Option, nor shall it be required
to issue scrip or pay cash in lieu of any fractional interests, it being
the
intent of the parties that all fractional interests shall be eliminated
by rounding any fraction up or down to the nearest whole number of Warrants,
Ordinary
Shares
or other securities, properties or rights.
7.
Reservation and Listing. The Company shall at all times reserve and keep
available out of its authorized Ordinary
Shares,
solely for the purpose of issuance upon exercise of the Purchase Options
or the
Warrants underlying the Purchase Option, such number of Ordinary
Shares
or other securities, properties or rights as shall be issuable upon the
exercise
thereof. The Company covenants and agrees that, upon exercise of the Purchase
Options and payment of the Exercise Price therefor, all Ordinary
Shares
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights
of
any stockholder. The Company further covenants and agrees that upon exercise
of
the Warrants underlying the Purchase Options and payment of the respective
Warrant exercise price therefor, all Ordinary
Shares
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights
of
any stockholder. As long as the Purchase Options shall be outstanding,
the
Company shall use its best efforts to cause all (i) Units and Ordinary
Shares
issuable upon exercise of the Purchase Options, (ii) Warrants issuable
upon
exercise of the Purchase Options and (iii)Ordinary
Shares
issuable upon exercise of the Warrants included in the Units issuable upon
exercise of the Purchase Option to be listed (subject to official notice
of
issuance) on all securities exchanges (or, if applicable on the Nasdaq
Global
Select Market, Nasdaq Global Market, Nasdaq Capital Market, OTC Bulletin
Board
or any successor trading market) on which the Units, the Ordinary
Shares
or the Warrants may then be listed and/or quoted.
rights,
or entitled to vote on such proposed dissolution, liquidation, winding
up or
sale. Such notice shall specify such record date or the date of the closing
of
the transfer books, as the case may be. Notwithstanding the foregoing,
the
Company shall deliver to each Holder a copy of each notice given to the
other
stockholders of the Company at the same time and in the same manner that
such
notice is given to the stockholders.
8.2
Events Requiring Notice. The Company shall be required to give the notice
described in this Section 8 upon one or more of the following events: (i)
if the
Company shall take a record of the holders of its Ordinary
Shares
for the purpose of entitling them to receive a dividend or distribution,
or (ii)
the Company shall offer to all the holders of its Ordinary
Shares
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option,
right or warrant to subscribe therefor, or (iii) a dissolution, liquidation
or
winding up of the Company (other than in connection with a consolidation
or
merger) or a sale of all or substantially all of its property, assets and
business or a merger of the Company wherein the separate existence of the
Company shall cease shall be proposed.
P.O.
Box 309GT, Xxxxxx House
South
Church Street
Xxxxxx
Town, Grand Cayman
Cayman
Islands
10.2
Governing Law; Submission to Jurisdiction. This Purchase Option shall be
governed by and construed and enforced in accordance with the laws of the
State
of New York, without giving effect to conflict of laws. Each of the Company
and
Maxim agree that any action, proceeding or claim against it arising out
of, or
relating in any way to this Purchase Option shall be brought and enforced
in the
courts of the State of New York located in New York County or of the United
States of America for the Southern District of New York, and irrevocably
submits
to such jurisdiction, which jurisdiction shall be exclusive. Each of the
Company
and Maxim hereby waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenient forum. Any process or summons to
be served
upon the Company may be served by transmitting a copy thereof by registered
or
certified mail, return receipt requested, postage prepaid, addressed to
it at
the address set forth in Section 8 hereof. Such mailing shall be deemed
personal
service and shall be legal and binding upon the Company in any action,
proceeding or claim. The Company and the Holder agree that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys' fees and expenses relating
to such
action or proceeding and/or incurred in connection with the preparation
therefor.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed
by its
duly authorized officer as of the 16th
day of January, 2008.
ASIA SPECIAL SITUATION ACQUISITION CORP. | ||
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|
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By: | /s/ Xxxxxx Xx | |
Name: Xxxxxx Xx |
||
Title: Chief Executive Officer |
Form
to be used to exercise Purchase Option
Date:_________________,
200__
The
undersigned hereby elects irrevocably to exercise all or a portion of the
within
Purchase Option and to purchase ____ Units of Asia Special Situation Acquisition
Corp. and hereby makes payment of $____________ (at the rate of $_________
per
Unit) in payment of the Exercise Price pursuant thereto. Please issue the
Ordinary
Shares
and Warrants as to which this Purchase Option is exercised in accordance
with
the instructions given below.
or
The
undersigned hereby elects irrevocably to convert its right to purchase
_________
Units purchasable under the within Purchase Option by surrender of the
unexercised portion of the attached Purchase Option (with a "Value" based
of
$_______ based on a "Market Price" of $_______). Please issue the securities
comprising the Units as to which this Purchase Option is exercised in accordance
with the instructions given below.
|
||
Signature
|
||
|
||
Signature
Guaranteed
|
||
INSTRUCTIONS FOR REGISTRATION OF SECURITIES | ||
Name
|
|
|
(Print
in Block Letters)
|
||
Address
|
|
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON
THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION
OR
ENLARGEMENT
OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN
A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON
A
REGISTERED
NATIONAL SECURITIES EXCHANGE.
Form
to be used to assign Purchase Option
ASSIGNMENT
(To
be executed by the registered Holder to effect a transfer of the within
Purchase
Option):
FOR
VALUE RECEIVED,___________________________________________ does hereby
sell,
assign and transfer unto______________________________________ the right
to
purchase __________ Units of Asia Special Situation Acquisition Corp. (the
"Company") evidenced by the within Purchase Option and does hereby authorize
the
Company to transfer such right on the books of the Company.
Dated:___________________,
200__
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||
Signature
|
||
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||
Signature
Guaranteed
|
||
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON
THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION
OR
ENLARGEMENT
OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN
A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON
A
REGISTERED
NATIONAL SECURITIES EXCHANGE.