WARRANT AGREEMENT
This
WARRANT AGREEMENT (the “Agreement”) is made as of
_______ __, 2010 between S.E.
ASIA EMERGING MARKET CO., LTD, a British Virgin Islands business company
organized with limited liability (the “Company”) and Continental
Stock Transfer & Trust Company, a New York corporation, with offices at 00
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Warrant Agent”).
WHEREAS,
pursuant to that certain Subscription Agreement dated as of [●] (the “Subscription Agreement”), the
Company has received a binding commitment from the Company’s Representative (as
defined below) and the existing shareholders (the “Existing Shareholders”), to
purchase an aggregate of 1,585,714 Warrants (“Private Placement Warrants”)
contemporaneously with the consummation of the Public Offering (defined below);
and
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) of units
(“Units”), each unit
comprised of: (i) one subunit and (ii) one Class A warrant exercisable at $6.00
per Ordinary Share (as defined below) (“Class A
Warrant”). Each subunit consists of one Ordinary
Share and one Class B warrant exercisable at $6.00 per Ordinary Share
(“Class B Warrant” and,
together with the Class A Warrants, “Public Warrants”) and, in
connection therewith, has determined to issue and deliver (i) an aggregate of up
to 2,530,000 Public Warrants and (ii) up to 110,000 Units whose Class A Warrants
and Class B Warrants are exercisable for $6.60, but which warrants are otherwise
identical to the Public Warrants, (the “Representative Warrants” and,
together with the Public Warrants and the Private Placement Warrants, the “Warrants”) to Maxim Group,
LLC, as representative of the underwriters (the “Representative”) as part of
the Representative’s Units which may be exercised in whole or in part as
provided in that certain Unit Purchase Option by and between the Company and the
Representative, each of such Warrants evidencing the right of the holder thereof
to purchase one Ordinary Share, no par value per share (“Ordinary Shares”), subject to
adjustment as described herein; and
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement
on Form F-1, No. 333-170847 (“Registration Statement”), for
the registration, under the Securities Act of 1933, as amended (“Act”) of, among other
securities, the Warrants and the Ordinary Shares issuable upon exercise of the
Warrants which was declared effective on [●], 2011 (the “Effective Date”);
and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
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WHEREAS,
the Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as
agent for the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
2.1. Form of
Warrant. Each Warrant shall be issued in registered form only,
shall be in substantially the form of (i) Exhibit A hereto in
the case of the Class A Warrants, and (ii) Exhibit B in the case
of the Class B Warrants, the provisions of which are incorporated herein and
shall be signed by, or bear the facsimile signature of, the Chairman of the
Board, Chief Executive Officer or President and the Treasurer, Secretary or
Assistant Secretary of the Company and shall bear a facsimile of the Company’s
seal. In the event the person whose facsimile signature has been placed upon any
Warrant shall have ceased to serve in the capacity in which such person signed
the Warrant before such Warrant is issued, it may be issued with the same effect
as if he or she had not ceased to be such at the date of issuance.
2.2. Effect of
Countersignature. Unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no
effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant
Register. The Warrant Agent shall maintain books (“Warrant Register”), for the
registration of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the respective
holders thereof in such denominations and otherwise in accordance with
instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered
Holder. Prior to due presentment for registration of transfer
of any Warrant, the Company and the Warrant Agent may deem and treat the person
in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the
absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
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2.4. Detachability of
Warrants. The subunits and Class A Warrants comprising the
units will begin separate trading (the “Detachment Date”) on the 10th
business day following the earlier to occur of: (i) the expiration of the
underwriters’ over-allotment option (which is 45 days from the Effective Date)
(the “Over-allotment
Option”), (ii) the exercise in full of the Over-allotment Option or (iii)
the announcement of the underwriters’ intention not to exercise all or any
remaining portion of the Over-allotment Option. In no event will
separate trading of the securities comprising the Units commence until (x) the
Company files with the SEC a Current Report on Form 6-K, which includes an
audited balance sheet reflecting the receipt by the Company of the gross
proceeds of the sale of the Private Placement Warrants and the Public Offering,
including the proceeds received by the Company from the exercise of the
Over-allotment Option, if the Over-allotment Option is exercised and closes on
the date the Public Offering is consummated and (y) the Company
issues a press release and files with the SEC a Current Report on Form 6-K
announcing when such separate trading will begin. The Class B Warrants will not
trade separately, and will trade as a subunit with the Ordinary Shares until the
tenth business day after the consummation of a Business Combination (as defined
below).
2.5 Warrant
Attributes.
2.5.1 Private Placement
Warrants. The Private Placement Warrants will be issued in the
same form as the Class A Warrants but they (i) will not be transferable or
salable until after the Company completes a Business Combination, (ii) will be
exercisable on a cashless basis so long as they are held by an Existing
Shareholder, the Representative or their permitted transferees, (iii) will not
be redeemable by the Company so long as they are held by an Existing
Shareholder, the Representative or their permitted transferees and (iv) may be
exercised for unregistered shares if a registration statement relating to the
Ordinary Shares issuable upon exercise of such Warrants is not effective and
current, subject to Section 3.3.2 (ii) herein.
2.5.2. Representative’s
Warrants. The Representative’s Warrants shall have the same
terms and be in the same form as the Public Warrants; provided, however, the
Representative’s Warrants shall have an exercise price of $6.60 per Class A
Warrant and Class B Warrant and shall be exercisable at any time, in whole or in
part, commencing on the later of (i) one year from the effective date of the
Registration Statement and (ii) the consummation of a Business
Combination.
3. Terms and Exercise of
Warrants.
3.1. Warrant
Price. Each Warrant shall, when countersigned by the Warrant
Agent, entitle the registered holder thereof, subject to the provisions of such
Warrant and of this Warrant Agreement, to purchase from the Company the number
of Ordinary Shares stated therein, at the price of $6.00 per whole share in the
case of Class A Warrants, Private Placements Warrants, and Class B Warrants, and
with respect to the Representative’s Warrants, $6.60 per Class A Warrant and
Class B Warrant, in each case subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this
Warrant Agreement refers to the price per share at which Ordinary Shares may be
purchased at the time a Warrant of a given class is exercised. The
Company in its sole discretion may lower the Warrant Price of a Warrant with
respect to any individual class of Warrants at any time prior to the Expiration
Date for a period of not less than twenty business days, provided that any such
reduction shall be identical among all of the Warrants of the same
class.
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3.2. Duration of
Warrants. A Warrant may be exercised only during the period
commencing on the later of: (i) the consummation of an acquisition, share
exchange, share reconstruction and amalgamation or contractual control
arrangement with, purchase of all or substantially all of the assets of, or any
other similar business transactions with operating businesses or assets (a
“Business Combination”)
(but with respect to the Class B Warrants, 10th day following the completion of
any such Business Combination); or (ii)
[ ], 2012
(one year from the Effective Date), and terminating on the earlier of (i) 5:00
p.m., New York City time on
[ ], 2016
(five years from the Effective Date); (ii) in the event an initial Business
Combination is not consummated within 24 months of the effective date of the
Registration Statement; or (iii) the Redemption Date as provided in Section 6.2
of this Agreement (as applicable, the “Expiration Date”). Except with
respect to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration
Date. The Company in its sole discretion may extend the duration of
any individual class of Warrants by delaying the Expiration Date; provided,
however, the Company will provide notice to registered holders of such Warrants
of such extension of not less than 20 days and, further provided that any such
extension shall be identical in duration among all Warrants in such
class. In the event that a registration statement with respect to the
Ordinary Shares underlying a Public Warrant is not effective under the Act, the
holder of such Public Warrant shall not be entitled to exercise such Warrant and
such Warrant may have no value and expire worthless.
3.3. Exercise of
Warrants.
3.3.1. Payment. Subject
to the provisions of the Warrants and this Warrant Agreement, a
Warrant, when countersigned by the Warrant Agent, may be exercised by the
registered holder thereof by surrendering it, at the office of the Warrant
Agent, or at the office of its successor as Warrant Agent, in the Borough of
Manhattan, City and State of New York, with the subscription form, as set forth
in the Warrant, duly executed, and by paying in full the Warrant Price for each
full share of Ordinary Shares as to which the Warrant is exercised and any and
all applicable taxes due in connection with the exercise of the Warrant, the
exchange of the Warrant for the Ordinary Shares and the issuance of such
Ordinary Shares, as follows:
(a) in
lawful money of the United States, good certified check or good bank draft
payable to the order of the Warrant Agent;
(b) with
respect to any Private Placement Warrants, so long as such Private Placement
Warrants are held by Existing Shareholders, the Representative or their
permitted transferees, by surrendering the Warrants for: that number of Ordinary
Shares equal to the quotient obtained by dividing (x) the product of the number
of Ordinary Shares underlying the Warrants, multiplied by the difference between
the Warrant Price and the “Fair Market Value” (defined below) by (y) the Fair
Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean
the average reported last sale price of the Ordinary Shares for the 5 trading
days ending on the trading day prior to the date of exercise.
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3.3.2. Issuance of
Certificates. As soon as practicable after the exercise of any
Warrant and the clearance of the funds in payment of the Warrant Price (if cash
is paid), the Company shall issue to the registered holder of such Warrant a
certificate or certificates for the number of full Ordinary Shares to which he,
she or it is entitled, registered in such name or names as may be directed by
him, her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised. Notwithstanding the foregoing, the Company
shall not be obligated to deliver any securities pursuant to the exercise of a
Warrant and shall have no obligation to settle such Warrant exercise unless: (i)
a registration statement under the Act with respect to the Ordinary Shares
underlying the Public Warrants is effective, subject to the Company’s satisfying
its obligations under Section 7.4 or (ii) solely with respect to Private
Placement Warrants, in the opinion of counsel to the Company, the exercise of
such Warrants is exempt from the registration requirements of the Act and such
securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the registered
holders reside. In the event that a registration statement with respect to the
Ordinary Shares underlying a Public Warrant is not effective under the Act, the
holder of such Public Warrant shall not be entitled to exercise such Warrant and
such Warrant may have no value and expire worthless. In no event will the
Company be required to net cash settle the Warrant exercise. Warrants
may not be exercised by, or securities issued to, any registered holder in any
state in which such exercise would be unlawful. In the event that a registration
statement is not effective for the exercised Public Warrants, the purchaser of a
Unit containing such Warrants will have paid the full purchase price for the
Unit solely for the Ordinary Shares included in such Unit and shall have no
recourse against the Company therefor.
3.3.3. Valid
Issuance. All Ordinary Shares issued upon the proper exercise
of a Warrant in conformity with this Agreement shall be validly issued, fully
paid and nonassessable.
3.3.4. Date of
Issuance. Each person in whose name any such certificate for
Ordinary Shares is issued shall for all purposes be deemed to have become the
holder of record of such shares on the date on which the Warrant was surrendered
and payment of the Warrant Price was made, irrespective of the date of delivery
of such certificate, except that, if the date of such surrender and payment is a
date when the share transfer books of the Company are closed, such person shall
be deemed to have become the holder of such shares at the close of business on
the next succeeding date on which the share transfer books are
open.
4. Adjustments.
4.1. Stock Dividends - Split
Ups. If after the date hereof, and subject to the provisions
of Section 4.6 below, 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 of such stock
dividend, split up or similar event, the number of Ordinary Shares issuable on
exercise of each Warrant shall be increased in proportion to such increase in
outstanding Ordinary Shares.
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4.2. Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 4.6, the number of outstanding Ordinary Shares is
decreased by a consolidation, combination, reverse stock split or
reclassification of Ordinary Shares or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of Ordinary Shares issuable on
exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding Ordinary Shares.
4.3 Adjustments in Exercise
Price. Whenever the number of Ordinary Shares purchasable upon
the exercise of the Warrants is adjusted, as provided in Section 4.1 and 4.2
above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying
such Warrant Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of Ordinary Shares purchasable upon the
exercise of the Warrants immediately prior to such adjustment, and (y) the
denominator of which shall be the number of Ordinary Shares so purchasable
immediately thereafter.
4.4. 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 4.1 or 4.2 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
assets or other property of the Company as an entirety or substantially as an
entirety in connection with which the Company is dissolved, the Warrant holders
shall thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in the Warrants and in lieu of the Ordinary
Shares of the Company immediately theretofore purchasable and receivable upon
the exercise of the rights represented thereby, the kind and amount of shares 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, that the Warrant holder would have received
if such Warrant holder had exercised his, her or its Warrant(s) immediately
prior to such event; and if any reclassification also results in a change in
Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.
4.5. Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price or the
number of shares issuable upon exercise of a given class of Warrants, the
Company shall give written notice thereof to the Warrant Agent, which notice
shall state the Warrant Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price upon the
exercise of a Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Upon
the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in
any such event, the Company shall give written notice to each relevant Warrant
holder, at the last address set forth for such holder in the warrant register,
of the record date or the effective date of the event. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such event.
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4.6. No Fractional
Shares. Notwithstanding any provision contained in this
Warrant Agreement to the contrary, the Company shall not issue fractional shares
upon exercise of Warrants. If, by reason of any adjustment made
pursuant to this Section 4, the holder of any Warrant would be entitled, upon
the exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round up to the nearest whole number, the
number of the Ordinary Shares to be issued to the Warrant holder.
4.7. Forms of
Warrant. The forms of Warrant need not be changed because of
any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this
Agreement. However, the Company may at any time in its sole
discretion make any change in the forms of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer and Exchange of
Warrants.
5.1. Registration of
Transfer. The Warrant Agent shall register the transfer, from
time to time, of any outstanding Warrant upon the Warrant Register, upon
surrender of such Warrant for transfer, properly endorsed with signatures
properly guaranteed and accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant representing an equal
aggregate number of Warrants shall be issued and the old Warrant shall be
cancelled by the Warrant Agent. The Warrants so cancelled shall be
delivered by the Warrant Agent to the Company from time to time upon
request.
5.2. Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as
requested by the registered holder of the Warrants so surrendered, representing
an equal aggregate number of Warrants; provided, however, that in the
event that a Warrant surrendered for transfer bears a restrictive legend, the
Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange
therefor until the Warrant Agent has received an opinion of counsel for the
Company stating that such transfer may be made and indicating whether the new
Warrants must also bear a restrictive legend.
5.3. Fractional
Warrants. The Warrant Agent shall not be required to effect
any registration of transfer or exchange which will result in the issuance of a
warrant certificate for a fraction of a warrant.
5.4. Service
Charges. No service charge shall be made for any exchange or
registration of transfer of Warrants.
5.5. Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this Agreement, the
Warrants required to be issued pursuant to the provisions of this Section 5, and
the Company, whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such
purpose.
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5.6 Transfer of
Warrants. Prior to the Detachment Date, the Class A Warrants
may be transferred or exchanged only together with the Unit in which such
Warrant is included, and only for the purpose of effecting, or in conjunction
with, a transfer or exchange of such Unit. The Class B Warrants will continue to
be attached as a subunit to the Ordinary Shares until following any Business
Combination. Each transfer of a Unit on the register relating to such Units
shall operate also to transfer the Warrants included in such Unit. From and
after the Detachment with respect to the Class A Warrants, and the date of any
Business Combination with respect to the Class B Warrants, this Section 5.6 will
have no further force and effect.
5.7 Representative’s Units
Lockup. The Representative’s Warrants may be transferred in
accordance with the terms hereof; provided, however, the
Representative’s Units (and underlying Representative’s Warrants) are subject to
a 180-day lock-up pursuant to Rule 5110(g)(1) of the FINRA Conduct
Rules. As a result, the Representative’s Units (and underlying
Representative’s Warrants) may not be sold, transferred, assigned, pledged or
hypothecated for 180 days following the effective date of the Registration
Statement.
6. Redemption.
6.1. Redemption. Subject
to Sections 6.4 hereof, not less than all of the outstanding Public Warrants may
be redeemed, at the option of the Company, at any time while they are
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2, at the price of $.01 per Warrant
(“Redemption Price”),
provided that the last sales price of the Ordinary Shares has been at least
$9.00 per share (subject to adjustment in accordance with Section 4 hereof), on
each of twenty (20) trading days within any thirty (30) trading day period
ending on the third business day prior to the date on which notice of redemption
is given, provided that there
is an effective registration statement covering the Ordinary Shares underlying
the Warrants for the continuous period beginning on the date on which notice is
given and ending on the Redemption Date.
6.2. Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem
all of the Public Warrants, the Company shall fix a date for the redemption (the
“Redemption
Date”). Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than 30 days prior to the
Redemption Date to the registered holders of the Warrants to be redeemed at
their last addresses as they shall appear on the registration
books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the registered
holder received such notice.
6.3. Exercise After Notice of
Redemption. The Warrants may be exercised for cash at any time
after notice of redemption shall have been given by the Company pursuant to
Section 6.2 hereof and prior to the Redemption Date. On and after the Redemption
Date, the record holder of the Warrants shall have no further rights except to
receive, upon surrender of the Warrants, the Redemption Price.
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6.4 Exclusion of Private
Placement Warrants. The Company understands that the
redemption rights provided for by this Section 6 do not apply to the Private
Placement Warrants if at the time of redemption such warrants continue to be
held by the Existing Shareholders, the Representative or their permitted
transferees. However, once such Private Placement Warrants are
transferred other than to any permitted transferees, the Company may redeem the
Private Placement Warrants, provided that the criteria for redemption are met,
including the opportunity of the Warrant holder to exercise prior to redemption
pursuant to Section 6.3.
7. Other Provisions Relating to
Rights of Holders of Warrants.
7.1. No Rights as
Stockholder. A Warrant does not entitle the registered holder
thereof to any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.
7.2. Lost, Stolen, Mutilated, or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated,
or destroyed, the Company and the Warrant Agent may on such terms as to
indemnity or otherwise as they may in their discretion impose (which shall, in
the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a
substitute contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable
by anyone.
7.3. Reservation of Ordinary
Shares. The Company shall at all times reserve and keep
available a number of its authorized but unissued Ordinary Shares that will be
sufficient to permit the exercise in full of all outstanding Warrants issued
pursuant to this Agreement.
7.4. Registration of Ordinary
Shares. The Company agrees that prior to the commencement of
the Exercise Period, it shall use its best efforts to file with the Securities
and Exchange Commission a post-effective amendment to the Registration
Statement, or a new registration statement, for the registration, under the Act,
of the Ordinary Shares issuable upon exercise of the Warrants, and it shall use
its best efforts to take such action as is necessary to qualify for sale, in
those states in which the Warrants were initially offered by the Company, the
Ordinary Shares issuable upon exercise of the Warrants. The Company
will use its best efforts to cause the same to become effective and to maintain
the effectiveness of such registration statement until the expiration of the
Warrants in accordance with the provisions of this Agreement. In
addition, the Company agrees to use its best efforts to register such securities
under the blue sky laws of the states of residence of the exercising warrant
holders to the extent an exemption is not available, subject to the proviso
above.
8. Concerning the Warrant Agent
and Other Matters.
8.1. Payment of
Taxes. The Company will from time to time promptly pay all
taxes and charges that may be imposed upon the Company or the Warrant Agent in
respect of the issuance or delivery of Ordinary Shares upon the exercise of
Warrants, but the Company shall not be obligated to pay any transfer taxes in
respect of the Warrants or such shares.
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8.2. Resignation, Consolidation,
or Merger of Warrant Agent.
8.2.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing
to the Company. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the Warrant
Agent or by the holder of the Warrant (who shall, with such notice, submit his
Warrant for inspection by the Company), then the holder of any Warrant may apply
to the Supreme Court of the State of New York for the County of New York for the
appointment of a successor Warrant Agent at the Company’s cost. Any
successor Warrant Agent, whether appointed by the Company or by such court,
shall be a corporation organized and existing under the laws of the State of New
York, in good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authority. After appointment, any successor Warrant
Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request
of any successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant
Agent. In the event a successor Warrant Agent shall be
appointed, the Company shall give notice thereof to the predecessor Warrant
Agent and the transfer agent for the Ordinary Shares not later than the
effective date of any such appointment.
8.2.3. Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent
may be merged or with which it may be consolidated or any corporation resulting
from any merger or consolidation to which the Warrant Agent shall be a party
shall be the successor Warrant Agent under this Agreement without any further
act.
8.3. Fees and Expenses of Warrant
Agent.
8.3.1. Remuneration. In
connection with its services as Warrant Agent, the Company agrees to pay to the
Warrant Agent the fee set forth on Schedule A to that
certain Investment Management Trust Agreement by and between the Company and the
Warrant Agent.
8.3.2. Further
Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed, acknowledged, and
delivered all such further and other acts, instruments, and assurances as may
reasonably be required by the Warrant Agent for the carrying out or performing
of the provisions of this Agreement.
10
8.4. Liability of Warrant
Agent.
8.4.1. Reliance on Company
Statement. Whenever in the performance of its duties under
this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the President,
Chief Executive Officer or Chairman of the Board of the Company and delivered to
the Warrant Agent. The Warrant Agent may rely upon such statement for
any action taken or suffered in good faith by it pursuant to the provisions of
this Agreement.
8.4.2. Indemnity. The
Warrant Agent shall be liable hereunder only for its own gross negligence,
willful misconduct or bad faith. The Company agrees to indemnify the
Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by
the Warrant Agent in the execution of this Agreement except as a result of the
Warrant Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3. Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to
whether any Ordinary Shares will when issued be valid and fully paid and
nonassessable.
8.5. Acceptance of
Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and among other things, shall account promptly to
the Company with respect to Warrants exercised and concurrently account for, and
pay to the Company, all moneys received by the Warrant Agent for the purchase of
Ordinary Shares through the exercise of Warrants.
8.6 Waiver. The
Warrant Agent hereby waives any and all right, title, interest or claim of any
kind (“Claim”) in or to
any distribution of the Trust Account (as defined in that certain Investment
Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Warrant Agent as trustee thereunder) and hereby agrees not to
seek recourse, reimbursement, payment or satisfaction for any Claim against the
Trust Account for any reason whatsoever.
9. Miscellaneous
Provisions.
9.1. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
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9.2. Notices. Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after
deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Company with the Warrant Agent), as
follows:
S.E. Asia
Emerging Market Co., Ltd
00 Xxxxx
Xxxxx Xxxx #00-00
Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 000000
Attn: Chief
Financial Officer
Fax No.:
00-0000-0000
Any
notice, statement or demand authorized by this Agreement to be given or made by
the holder of any Warrant or by the Company to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
with a
copy to (which shall not constitute notice):
S.E. Asia
Emerging Market Co., Ltd
00 Xxxxx
Xxxxx Xxxx #00-00
Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 000000
Attn: Chief
Financial Officer
and
Ellenoff
Xxxxxxxx & Schole LLP
000 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
Fax No:
(000)-000-0000
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9.3. Applicable
Law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by 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. The Company hereby agrees that any action, proceeding
or claim against it arising out of or relating in any way to this Agreement
shall be brought and enforced in the courts of the State of New York or the
United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience
forum. Any such 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 9.2 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or
claim.
9.4. Persons Having Rights under
this Agreement. Nothing in this Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the parties hereto and the registered holders of the Warrants, any right,
remedy, or claim under or by reason of this Warrant Agreement or of any
covenant, condition, stipulation, promise, or agreement hereof. All
covenants, conditions, stipulations, promises, and agreements contained in this
Warrant Agreement shall be for the sole and exclusive benefit of the parties
hereto and their successors and assigns and of the registered holders of the
Warrants.
9.5. Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all
reasonable times at the office of the Warrant Agent in the Borough of Manhattan,
City and State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this
Agreement by facsimile or electronic transmission shall constitute valid and
sufficient delivery thereof.
9.7. Effect of
Headings. The Section headings herein are for convenience only
and are not part of this Warrant Agreement and shall not affect the
interpretation thereof.
9.8
Amendments. This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any
amendment to increase the Warrant Price or shorten the Exercise Period, shall
require the written consent of the registered holders of a majority of the then
outstanding Warrants. Notwithstanding the foregoing, the Company may
lower the Warrant Price or extend the duration of the Exercise Period with
respect to any individual class of Warrants pursuant to Sections 3.1 and 3.2,
respectively, without the consent of the registered holders. The
Warrant Agent may require an opinion of the Company’s counsel as to the validity
of a proposed amendment as a condition of its execution of such
amendment.
13
9.9 Severability. This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
9.10 Mutual
Drafting. This Agreement is the joint product of the Warrant
Agent and the Company and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of such parties and shall not be
construed for or against any party hereto.
[Signature
Page Follows]
14
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
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S.E.
ASIA EMERGING MARKET CO., LTD
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By:
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Name:
Xxxx Xxxxxx
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Title:
Chief Executive Officer
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
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Title:
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