INVESTMENT MANAGEMENT TRUST AGREEMENT
EXHIBIT
10.2
This
Agreement is made as
of
, 2008, by and between China Fundamental Acquisition Corporation (the “Company”)
whose principal office is located at Room 2301, World-Wide ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and Continental Stock Transfer & Trust Company, (the
“Trustee”) located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.▇.
WHEREAS,
the Company’s Registration Statement on Form F-1, File No. 333 (“Registration
Statement”), for its initial public offering (“IPO”) of units (the “Units”) of
the Company, each Unit consisting of one ordinary share, par value $0.001
per
share (the “Ordinary Share”) and one warrant to purchase one Ordinary Share (the
“Warrant”), has been declared effective as of the date hereof (the “Effective
Date”) by the Securities and Exchange Commission (the “Commission”);
WHEREAS,
the Company has sold an aggregate of 1,944,444 warrants (the “Private
Placement Warrants”) in a private placement (the “Placement”) pursuant to the
Securities Act of 1933, as amended (the “Act”);
WHEREAS,
Chardan Capital Markets, LLC (“Chardan”) is acting as the representative for the
underwriters (the “Underwriters”) in the IPO;
WHEREAS,
as described in the Company’s Registration Statement, and in accordance with the
Company’s Amended and Restated Articles of Association, $30,000,000 of the gross
proceeds of the IPO, including $1,050,000 in deferred underwriting compensation
(or $34,500,000 of the net proceeds, including $1,207,500 in deferred
underwriting compensation, if the Underwriters’ over-allotment option is
exercised in full) and $1,750,000 of the sale proceeds of the Private Placement
Warrants 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 issued in the IPO (except as otherwise provided herein) and in the
event
the Units are registered in Colorado, pursuant to Section 11-51-302(6) of
the
Colorado Revised Statutes (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, the Underwriters, and the Company
will be referred to together as the “Beneficiaries”);
WHEREAS,
pursuant to the Underwriting Agreement, dated as
of
, 2008, between the Company and the Underwriters, a portion of the Property
equal to $1,050,000 ($1,207,500 if the Underwriters’ over-allotment option is
exercised in full) is attributable to deferred underwriting compensation
that
will become payable by the Company to the Underwriters upon the consummation
of
a Business Combination (as defined in the Registration Statement) (the “Deferred
Discount”); 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
1.
Agreements and Covenants of Trustee. The Trustee is hereby appointed to serve
as
Trustee hereunder, and the Trustee hereby agrees to act as Trustee upon the
terms and conditions set forth herein. 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, without limitation, the terms of Section 11-51-302(6)
of
the Colorado Revised Statutes in segregated trust account(s) (“Trust Account”)
established by the Trustee at the London Branch of JPMorgan Chase Bank, N.A.
and
at a brokerage institution selected by the Company and agreed to by the
Trustee;
(b)
Manage, supervise and administer the Trust Account subject to the terms and
conditions set forth herein;
(c)
In a
timely manner, upon the written instruction of the Company, to invest and
reinvest the Property in any “Government Security.” As used herein, Government
Security means any Treasury ▇▇▇▇ issued by the United States, having a maturity
of 180 days or less or any open ended investment company selected by the
Company
and registered under the Investment Company Act of 1940 that holds itself
out as
a money market fund meeting the conditions of paragraphs (c)(2), (c)(3),
and
(c)(4) under 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 the tax returns for the Trust
Account or the Company;
(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 to such other person as the Company may instruct,
monthly written statements of the activities of and amounts in the Trust
Account
reflecting all receipts and disbursements of the Trust Account;
(i)
As of
the date of the consummation of a business combination (“Business Combination”)
or the vote of the Company’s Board of Directors to liquidate and dissolve the
Company, commence liquidation of the Trust Account upon receipt of the Officers’
Certificate signed by the Chief Executive Officer or President in accordance
with the terms of a letter (“Termination Letter”), in a form substantially
similar to that attached hereto as Exhibit A or Exhibit B, signed on behalf
of
the Company by its Chief Executive Officer and President, 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. The Trustee understands and agrees that disbursements
from
the Trust Account shall be made only pursuant to a duly executed Termination
Letter, together with the other documents referenced herein, including, without
limitation, an independently certified oath and report of inspector of election
in respect of the shareholder vote in favor of the Business Combination or
certified resolutions of the Company’s Board of Directors, as
applicable;
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(j)
In
accordance with the instructions contained in the Termination Letter, as
of the
date 18 months from the date of this Agreement (the “LOI Termination Date”), or
24 months from the date hereof in the event the Company has executed the
Letter
of Intent (defined below) prior to the LOI Termination Date but failed to
consummate a Business Combination (“Second Termination Date”), or 36 months from
the date hereof in the event the Company’s shareholders have voted to increase
the amount of time available to the Company to consummate a Business Combination
(“Third Termination Date”), commence liquidation of the Trust Account. The
Trustee, upon receipt of written instructions from the Company, shall deliver
a
notice to Public Shareholders of record as of the LOI Termination Date, Second
Termination Date or Third Termination Date, whichever the case may be, by
U.S.
mail or via the Depository Trust Company (“DTC”), within five days of the LOI
Termination Date, Second Termination Date or Third Termination Date, to notify
the Public Shareholders of such event and take such other actions as it may
deem
necessary to inform the Beneficiaries. The Trustee shall deliver to each
Public
Shareholder its ratable share of the Property against satisfactory evidence
of
delivery of the share certificates by the Public Shareholders to the Company
through DTC, its Deposit Withdraw Agent Commission (DWAC) system or as otherwise
presented to the Trustee; provided, however, that in the event that a
Termination Letter has not been received by the LOI Termination Date, the
Second
Termination Date or the Third Termination Date, whichever the case may be,
the
Trust Account shall be liquidated as part of the Company’s plan of dissolution
and distribution approved by the Company’s Public Shareholders in accordance
with the procedures set forth in the Termination Letter to the shareholders
of
record on the record date; provided, further, that the record date shall
be
within ten (10) days of the LOI Termination Date, the Second Termination
Date or
Third Termination Date, whichever the case may be, or as soon thereafter
as is
practicable. Notwithstanding the foregoing, (i) if the Trustee receives a
bona
fide, executed letter of intent or engagement letter (the “Letter of Intent”)
for a Business Combination prior to the LOI Termination Date, accompanied
by an
Officers’ Certificate as described in paragraph 3(e) hereof, then the Trustee
shall forego or suspend any liquidation of the Trust Account until the earlier
of a Business Combination or the Second Termination Date, and (ii) if, prior
to
the Second Termination Date, the Trustee receives a certified copy of the
results of a meeting of the Company’s shareholders pursuant to which the
Company’s shareholders extended the time available to the Company to consummate
a Business Combination to the Third Termination Date, accompanied by an
Officers’ Certificate as described in paragraph 3(e) hereof, then the Trustee
shall forego or suspend any liquidation of the Trust Account until the earlier
of a Business Combination or the Third Termination Date; and
(k)
The
distribution, if any, of the Deferred Discount to the Underwriters upon the
liquidation of the Trust Account as provided herein shall be made from the
Trust
Account through the Trustee (and not through the Company) in accordance with
a
written instruction of the Company.
2.
Limited Distributions of Income on Property.
(a)
If
there is any income or other tax obligation owed by the Company, as determined
by the Company, then, from time to time, at the written instruction of the
Company and a statement of the principal financial officer of the Company
setting forth the actual amount payable (the “Tax Amount”), the Trustee shall
promptly distribute to the Company the Tax Amount; provided, however, that
the
aggregate amounts distributed pursuant to this Section 2(a) and 2(b) below
may
not at any time cause the amount in the Trust Account to fall below the amount
initially deposited into the Trust Account.
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(b)
Upon
one or more written requests from the Company, which may be given not more
than
once in any calendar month period, the Trustee shall distribute to the Company
interest earned on the Trust Account, net of taxes payable, up to a maximum
of
$850,000. The distributions requested by the Company may be for any amount,
provided that (i) in the aggregate, all distributions under this paragraph
2(b)
may not exceed $850,000 (subject to the limitation imposed by paragraph 2(a)
and
(ii) that such distributions may only be made if and to the extent that interest
has been earned and collected, net of taxes, on the amount initially deposited
into the Trust Account; and
(c)
Except as provided in this Section 2, no other distributions from the Trust
Account shall be permitted except in accordance with Sections 1(i) and (j)
hereof.
(d)
It is
agreed that the trustee's only obligation under this section is to follow
the
instructions of the Company.
3.
Agreements and Covenants of the Company. The Company hereby agrees and
covenants:
(a)
To
give all instructions to the Trustee hereunder in writing, signed by the
Company’s Chief Executive Officer or President. In addition, except with respect
to its duties under paragraph 1(i) and (j) 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, however,
that the Company shall promptly confirm such instructions in
writing;
(b)
To
hold the Trustee harmless and indemnify the Trustee from and against, any
and
all expenses, including reasonable counsels’ 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)
To
pay the Trustee an initial acceptance fee, an annual fee and a transaction
processing fee for each disbursement made pursuant to Sections 2(a) and 2(b)
as
set forth on Schedule A hereto, 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 fees
and
further agreed that said transaction processing fees shall be deducted by
the
Trustee from the disbursements made to the Company pursuant to Section
2(b).
The
Company shall pay the Trustee the initial acceptance fee and first year’s 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 Section 2(b) hereof (it being expressly understood that the Property
shall not be used to make any payments to the Trustee under such
section);
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(d)
That,
in the event that the Company consummates a Business Combination and the
Trust
Account is liquidated in accordance with Section 1(i) or (j) hereof, an
independent party designated by Chardan shall act as the inspector of election
to certify the results of the shareholder vote and the Public Shareholder
vote;
(e)
That
the Company’s Chief Executive Officer and President shall certify (i) prior to
the LOI Termination Date that (A) the Company has entered into a Business
Combination; (B) the Company has entered into a Letter of Intent or definitive
agreement relating to a Business Combination; or (C) that the Company’s Board of
Directors has determined to liquidate the Company; (ii) prior to the Second
Termination Date that (A) the Company has entered into a Business Combination;
(B) the Company’s shareholders voted to extend the time period available to the
Company to consummate a Business Combination to the Third Termination Date;
or
(C) that the Company’s Board of Directors has determined to liquidate the
Company; and (iii) prior to the Third Termination Date that (A) the Company
has
entered into a Business Combination; or (B) that the Company’s Board of
Directors has determined to liquidate the Company. A copy of any applicable
consents, actions of shareholders, Letter of Intent or definitive agreement
shall be attached as exhibits to the Officer’s Certificate;
(f)
In
connection with any vote of the Company’s shareholders regarding a Business
Combination, to provide to the Trustee an affidavit or certificate (the
“Report”) of a firm regularly engaged in the business of soliciting proxies and
tabulating shareholder votes verifying the vote of the Company’s shareholders
and Public Shareholders regarding such Business Combination. Such Report
shall
be attached as an exhibit to the Termination Letter, as applicable;
(g)
Within five (5) business days after the Underwriters’ over-allotment option (or
any unexercised portion thereof) expires or its exercise in full, to provide
the
Trustee notice in writing (with a copy to the Underwriters) of the total
amount
of the Deferred Discount, which shall in no event be less than $1,050,000;
and
(h)
As
soon as practicable after the LOI Termination Date, Second Termination Date
or
Third Termination Date, as applicable, to instruct the Trustee to commence
liquidation of the Trust Account as part of the Company’s plan of dissolution
and liquidation.
(i) Provide
the Underwriters 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 it issues same.
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 Section
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;
(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 written
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;
5
(d)
Change the investment of any Property, other than in compliance with Section
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
Company 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)
Prepare, execute and file tax reports, income or other tax returns and pay
any
taxes with respect to income and activities relating to the Trust Account,
regardless of whether such tax is payable by the Trust Account or the Company
(including but not limited to income tax obligations), it being expressly
understood that as set forth in Section 2(a), if there is any income or other
tax obligation relating to the Trust Account or the Property in the Trust
Account, as determined from time to time by the Company and regardless of
whether such tax is payable by the Company or the Trust, at the written
instruction of the Company, the Trustee shall make funds available in cash
from
the Property in the Trust Account an amount specified by the Company as owing
to
the applicable taxing authority, which amount shall be paid directly to the
Company by electronic funds transfer, account debit or other method of payment,
and the Company shall forward such payment to the taxing authority;
and
(i)
Verify calculations, qualify or otherwise approve Company requests for
distributions pursuant to Section 2.
5.
No
Right of Set-Off. The Trustee waives any right of set-off or any right, title,
interest or claim of any kind that the Trustee may have against the Property
held in the Trust Account. In the event that the Trustee has a claim against
the
Company under this Agreement, including, without limitation, under paragraph
4(c), the Trustee will pursue such claim solely against the Company and not
against the Property held in the Trust Account.
6.
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 during which time the Trustee shall continue to act in
accordance with the terms of this Agreement. 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 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
6
(b)
At
such time that the Trustee has completed the liquidation of the Trust Account
in
accordance with the provisions of Section 1(i) or 1(j) hereof, and distributed
the Property in accordance with the provisions of the Termination Letter,
this
Agreement shall terminate.
7.
Miscellaneous.
(a)
The
Company and the Trustee each acknowledge that the Trustee will follow the
security procedures set forth below with respect to funds transferred from
the
Trust Account. The Company and the Trustee will each restrict access to
confidential information relating to such security procedures to authorized
persons. Each party must notify the other party immediately if it has reason
to
believe unauthorized persons may have obtained access to such information,
or of
any change in its authorized personnel. In executing funds transfers, the
Trustee will rely upon all identifying information provided to it by the
Company, including name and account number 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
information.
(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 conflict of laws.
It may
be executed in several 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. This Agreement or any provision
hereof may be changed, waived, amended or modified only by a writing signed
by
each of the parties hereto, provided,
however,
that no
such amendment or modification (other than to correct a typographical or
similar
technical error) may be made to paragraphs 1, 2, 3(e), 3(f), 4, 5, 6, 7(c)
or to
Exhibits A, B or C hereof without the consent of the Public Shareholders,
it
being the specific intention of the parties hereto that each Public Shareholder
is and shall be a third-party beneficiary of this paragraph 7(c) with the
same
right and power to enforce this paragraph 7(c) as either of the parties hereto,
and provided,
further, that
this
Agreement may not be changed, waived, amended or modified in such a manner
as to
adversely affect the right of the Underwriters to receive the Deferred Discount
as contemplated herein without the written consent of Chardan. For purposes
of
this paragraph 7(c), the “consent of the Public Shareholders” shall mean receipt
by the Trustee of a certificate from an entity certifying that (i) such entity
regularly engages in the business of serving as inspector of elections for
companies whose securities are publicly traded, and (ii) either (a) 80% of
the
Public Shareholders of record as of a record date established in accordance
with
Cayman Islands Law, have voted in favor of such amendment or modification
or (b)
80% of the Public Shareholders of record as of a record date established
in
accordance with Cayman Islands Law have delivered to such entity a signed
writing approving such amendment or modification. As to any claim, cross-claim
or counterclaim in any way relating to this Agreement, each party waives
the
right to trial by jury.
7
(d)
The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York for purposes of resolving any disputes
hereunder. The parties hereto irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive, and hereby waive any objection to such
exclusive jurisdiction and accept such venue, and waive any objection that
such
courts represent an inconvenient forum.
(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
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
if
to the
Company, to:
Room
2301, World-Wide House
▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attn:
▇▇▇▇ ▇▇ Hao
Fax
No.:
▇▇▇-▇▇▇▇-▇▇▇▇
in
either
case with a copy to:
Chardan
Capital Markets, LLC
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax
No.:
▇-▇▇▇-▇▇▇-▇▇▇▇
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Izumi
Garden Tower ▇▇▇▇
▇▇▇▇▇
▇-▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇,
▇▇▇▇▇
▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax
No:
▇▇-▇-▇▇▇▇-▇▇▇▇
and
Loeb
& Loeb LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax
No: ▇
(▇▇▇) ▇▇▇-▇▇▇▇
8
(f)
This
Agreement may not be assigned by the Trustee without the prior consent of
the
Company and Chardan.
(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.
(h)
The
Trustee acknowledges and agrees that it is the specific intention of the
parties
hereto that the Underwriters are and shall be third-party beneficiaries of
the
provisions of this Agreement pertaining to the Deferred Discount (including
Paragraph 7(c)) and the Trustee’s obligations under this Agreement with respect
thereto (but solely of those provisions and solely with respect to such
obligations of the Trustee) with the same right and power to enforce those
provisions as either of the parties hereto.
[Signature
page to follow]
9
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY,
as Trustee
By:_______________________________
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President and Chairman of the Board
CHINA
FUNDAMENTAL ACQUISITION
CORPORATION
By:_______________________________
Name:
▇▇▇▇ ▇▇ Hao
Title:
Chief Executive Officer
10
SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
China Fundamental Acquisition Corporation and
Continental
Stock Transfer & Trust Company
|
Fee
Item
|
Time
and method of payment
|
Amount
|
|
Initial
acceptance fee
|
Initial
closing of IPO by wire transfer
|
$1,000
|
|
Annual
fee
|
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
|
$3,000
|
|
Transaction
processing fee for disbursements to Company under Sections 2(a)
and
2(b)
|
Deduction
by Trustee from disbursement made to Company under Section
2(b)
|
$250
|
11
EXHIBIT
A
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Re:
Trust
Account No. [____________] Business Combination Letter
Gentlemen:
Pursuant
to the Investment Management Trust Agreement between China Fundamental
Acquisition Corporation (“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 24 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 the 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 (a) the Business Combination has been consummated and (b)
the
provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado Revised
Statutes have been met and (ii) the Company shall deliver to you 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, including, pursuant to the terms of the
Underwriting Agreement, dated as of [__], 2008, between the Company and Chardan
Capital Markets, LLC, as representative for the underwriters, the portion
of the
Property attributable to the Deferred Discount (as defined in the Trust
Agreement), 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 be 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.
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 the Trustee’s
receipt of written instruction 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.
Very
truly yours,
By:
___________________________________
Name:
▇▇▇▇ ▇▇ Hao
Title:
Chief Executive Officer
EXHIBIT
B
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Re:
Trust
Account No. [____________] Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between China
Fundamental Acquisition Corporation (“Company”) and Continental Stock Transfer
& Trust Company (“Trustee”), dated as of _______________, 2008 (“Trust
Agreement”), this is to advise you that the Board of Directors of the Company
has voted to dissolve and liquidate the Company. Attached hereto is a copy
of
the minutes of the meeting of the Board of Directors of the Company relating
thereto, certified by the Secretary of the Company as true and correct and
in
full force and effect.
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
Revised Statutes have been met and (b) authorize you, to commence liquidation
of
the Trust Account. You will notify the Company and
[ ] (“Designated
Paying Agent”) in writing as to when all of the funds in the Trust Account will
be available for immediate transfer (“Transfer Date”). The Designated Paying
Agent shall thereafter notify you as to the account or accounts of the
Designated Paying Agent that the funds in the Trust Account should be
transferred to on the Transfer Date so that the Designated Paying Agent may
commence distribution of such funds in accordance with the Company’s
instructions. You shall have no obligation to oversee the Designated Paying
Agent’s distribution of the funds. Upon the payment to the Designated Paying
Agent of all the funds in the Trust Account, the Trust Agreement shall be
terminated.
Very
truly yours,
By:
_____________________________________
Name:
▇▇▇▇ ▇▇ Hao
Title:
Chief Executive Officer
EXHIBIT
C
AUTHORIZED
INDIVIDUAL(S)
| COMPANY: |
▇▇▇▇
▇▇
Hao
Telephone:
▇▇▇-▇▇▇▇-▇▇▇▇
Hope
Ni
Telephone:
▇▇▇-▇▇▇▇-▇▇▇▇
| TRUSTEE: |
Continental
Stock Transfer & Trust Company
|
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone:
▇ (▇▇▇) ▇▇▇-▇▇▇▇