INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.1
This
INVESTMENT MANAGEMENT TRUST AGREEMENT (this
“Agreement”)
entered into as of the __th day of _____, 2008, by and between Chardan 2008
China Acquisition Corp., a British Virgin Islands business company of limited
liability (the “Company”),
with
offices x/x Xxxxxxx Xxxxxxx, XXX, xx Xxxxx 00X, Xxxxx X, Oriental Kenzo Plaza,
00 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, 000000, Xxxxx, and Continental Stock Transfer
& Trust Company, a New York corporation (“Trustee”)
located at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS,
the
Company’s registration statement, No. 333-152623 on
Form
F-1, as amended (the “Registration
Statement”),
for
its initial public offering (“IPO”)
of
units (the “Units”)
of the
Company, each Unit consisting of one ordinary share, par value $0.0001 per
share
(an “Ordinary
Share”)
and
one warrant to purchase one Ordinary Share (a “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 issued an aggregate of 2,000,000 warrants (the “Private
Placement Warrants”)
in a
private offering (the “Offering”)
pursuant to the Securities Act of 1933, as amended (the “Act”);
WHEREAS,
Xxxxx
Xxxxxx, Carret & Co., LLC, Maxim Group LLC and Xxxx Capital Partners, LLC
(the “Representatives”)
are
acting as the representative of the several 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 Memorandum and Articles of Association, an
aggregate of $54,300,000 of the gross proceeds of the IPO, including $1,100,000
in deferred underwriting compensation, $1,100,000 in deferred non-accountable
expense allowance and $1,000,000 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, (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: (i) $1,100,000
is attributable to deferred underwriting compensation, and (ii) $1,100,000
is
attributable to deferred non-accountable expense allowance, which will become
payable by the Company to the Underwriters upon the consummation of a Business
Combination (as defined in the Registration Statement), and then only with
respect to those Units as to which the component ordinary shares have not been
redeemed for cash by those shareholders who voted against the business
combination and exercised their redemption rights (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. 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, in a segregated trust account(s) (“Trust
Account”)
established by the Trustee at X.X. Xxxxxx Xxxxx Bank N.A. and at a branch of
Xxxxxxx Sachs Group, Inc. located outside the United States selected by the
Company;
(b) manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) in
a
timely manner, upon the instruction of the Company, to invest and reinvest
the
Property in any “Government
Security”.
As
used herein, Government Security means any Treasury Xxxx issued by the United
States, having a maturity of 180 days or less or any open ended investment
company registered under the Investment Company Act of 1940, as amended, 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 and/or
the
Underwriters 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) if
there
is any income or other tax obligation relating to the income from the Property
in the Trust Account as determined by the Company, then, from time to time,
at
the written instruction of the Company, the Trustee shall promptly to the extent
there is not sufficient cash in the Trust Account to pay such tax obligation,
liquidate such assets held in the Trust Account as shall be designated by the
Company in writing, and
disburse
to the Company by wire transfer, out of the Property in the Trust Account,
the
amount indicated
by the Company as owing in
respect of such income tax obligation;
(j) as
of the
date of the consummation of the Company’s initial business combination, whether
through merger, share exchange, asset or share acquisition, exchangeable share
transaction, contractual control arrangement or other similar type of
transaction, of one or more assets or operating businesses in which the
collective fair market value of the target business is equal to at least eighty
percent of the net assets of the Company at the time of such business
combination (a “Business
Combination”)
or the
vote of the Company’s board of directors to liquidate and dissolve the Company,
commence liquidation of the Trust Account in accordance with the terms of a
letter (“Termination
Letter”),
in a
form substantially similar to that annexed hereto as Exhibit
A
or
Exhibit
B,
as
applicable, signed on behalf of the Company by its Chairman and Chief Executive
Officer, 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. The provisions of this Section 1(j) may not be modified, amended or
deleted under any circumstances;
2
(k) 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 30
months from the date hereof in the event the Company has executed the Letter
of
Intent (as hereinafter defined) prior to the LOI Termination Date but failed
to
consummate a Business Combination (the “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 (the “Third
Termination Date”),
commence liquidation of the Trust Account. The Trustee, upon receipt of written
instructions from the Company and the Representatives, 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, as applicable, to notify the Public Shareholders of such
event. The Trustee shall deliver to each Public Shareholder its ratable share
of
the Property against satisfactory evidence of delivery of the ordinary share
certificates by the Public Shareholders to the Company through DTC, its Deposit
Withdraw Agent Commission 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
Officer’s Certificate (as hereinafter defined), 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, as accompanied by an Officer’s
Certificate, 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
(l) 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 and the Underwriters.
2. Limited
Distributions of Income on Property.
(a) If
there
is any income or other tax obligation relating to the income from the Property
in the Trust Account as determined by the Company, then, from time to time,
at
the written instruction of the Company, the Trustee shall promptly to the extent
there is not sufficient cash in the Trust Account to pay such tax obligation,
liquidate such assets held in the Trust Account as shall be designated by the
Company in writing, and
disburse
to the Company by wire transfer, out of the Property in the Trust Account,
the
amount indicated
by the Company as owing in
respect of such income tax obligation;
provided,
however,
that
the aggregate amounts distributed pursuant to this Section 2(a) and Section
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.
(b) Upon
one
or more written requests from the Company, the Trustee shall distribute to
the
Company interest earned on the Trust Account, net of taxes payable. 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
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.
(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 1(j)
hereof.
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
Chairman or Chief Executive Officer. In addition, except with respect to its
duties under Sections 1(i) and 1(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. In all cases,
the Company shall provide the Representatives with a copy of any Termination
Letter and/or any other correspondence delivered to the Trustee or received
from
the Trustee with respect to any proposed withdrawal from the Trust Account
promptly after it has delivered or received same;
3
(b) subject
to the provisions of Section 5 hereof, 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 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
annexed
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
fee. 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 set forth in this Section 3(c) and as may be provided in
Section 3(b) hereof (it being expressly understood that the Property shall
not
be used to make any payments to the Trustee under such section);
(d) that,
in
the event that the Company consummates a Business Combination and the Trust
Account is liquidated in accordance with Sections 1(i) or 1(j) hereof, an
independent party designated by the Representatives 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 Chairman or Chief Executive Officer 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
to
such 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 of a firm
regularly engaged in the business of soliciting proxies and tabulating
shareholder votes verifying the vote of the Public Shareholders regarding such
Business Combination; and
(g) 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.
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;
4
(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) pay
any
taxes on behalf of the Trust Account (it being expressly understood that the
Trustee’s sole obligation with respect to taxes shall be as set forth in Section
2(a) hereof); and
(i) verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to Sections 1(i), 1(j), 2(a) or 2(b) above.
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 the Trustee has a claim against the Company under this
Agreement, including, without limitation, under Section 3(b), 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 that arises due to any
actions or omissions to act by any party after such deposit; or
(b) at
such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Sections 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
information supplied to it by the Company, including, account names, account
numbers, and all other identifying information relating to a beneficiary,
beneficiary’s bank or intermediary bank.
The
Trustee shall not be liable for any loss, liability or expense resulting from
any error in an account number or other identifying number.
5
(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 only be changed, amended or modified by a writing signed by each
of
the parties hereto; provided,
however,
that no
such change, amendment or modification may be made without the prior written
consent of the Representatives who, along with each other Underwriter, the
parties specifically agree, are and shall be the third party beneficiaries
for
purposes of this Agreement; provided,
further,
any
amendment to Section 1(j) shall require the vote or consent of holders of 95%
of
the Ordinary Shares held by 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 Section 7(c) with the same right and power
to
enforce this Section 7(c) as either of the parties hereto. For purposes of
this
Section 7(c), the “consent of holders of 95% of the Ordinary Shares held by 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) 95% of the Public Shareholders of record as of
the
record date, have voted in favor of such amendment or modification, or (b)
95%
of the Public Shareholders of record as of the record date has 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.
(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
00
Xxxxxxx Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxx Xxxxxx & Xxxxx Di Paolo
if
to the
Company, to:
Chardan
China 2008 Acquisition Corp.
x/x
Xxxxxxx Xxxxxxx, XXX
Xxxxx
00X, Xxxxx X
Xxxxxxxx
Kenzo Plaza
00
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx,
000000, Xxxxx
Fax
No.:
00-00-00000000
Attn:
Xxxxxxxx Xxxxx, Chief Financial Officer
6
with
a
copy in each case to:
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxx X. Xxxxxxx, Esq.
and
Xxxxx
Xxxxxx, Carret & Co., LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxxx XxXxxxxx
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxxxxx Xxxxxx
and
Xxxx
Capital Partners, LLC
00
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Fax
No.:
(000) 000-0000
Attn.:
Xxxxx Xxxxxxxxxxxxxxx
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attn.:
Xxxxxxxx X. Xxxxxxxxxx, Esq.
(f) This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representatives.
(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. The Trustee hereby consents to the
inclusion of Continental Stock Transfer & Trust Company in the Registration
Statement and other materials relating to the IPO.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
IN
WITNESS WHEREOF,
the
parties have duly executed this Investment Management Trust Agreement as of
the
date first written above.
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By:
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Name:
Xxxxx Xxxxxxx
|
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Title:
Chief Executive Officer and
Director
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
Xxxxxx X. Xxxxxx
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Title:
President & Chairman of the
Board
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8
SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
Chardan 2008 China Acquisition Corp. and
Continental
Stock Transfer & Trust Company
|
Fee
Item
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Time
and method of payment
|
Amount
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|||
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Initial
acceptance fee
|
Initial
closing of IPO by wire transfer
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$
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1,000.00
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||
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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
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$
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3,000.00
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||
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Transaction
processing fee for disbursements to Company under Sections 2(a) and
2(b)
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Deduction
by Trustee from disbursement made to Company under Section
2(b)
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$
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250.00
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||
Dated:
_____
__,
2008
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AGREED:
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CHARDAN
0000 XXXXX ACQUISITION CORP.
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By:
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Name:
Xxxxx Xxxxxxx
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Title:
Chief Executive Officer and
Director
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
Xxxxxx X. Xxxxxx
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|
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Title:
President & Chairman of the
Board
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EXHIBIT
A
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn.:
Xxxxxx Xxxxxx & Xxxxx Di Paolo
Re: Trust
Account No. [____________] Termination Letter
Gentlemen:
Pursuant
to the Investment Management Trust Agreement between Chardan 2008 China
Acquisition Corp. (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”),
dated
as of _____ __, 2008 (the “Agreement”),
this
is to advise you that the Company has entered into an agreement (a “Business
Agreement”)
with
_____________ (the “Target
Business”)
to
consummate a business combination with Target Business (a “Business
Combination”)
on or
about _____ __ 20__. The Company shall notify you at least 24 hours in advance
of the actual date of the consummation of the Business Combination (the
“Consummation
Date”).
In
accordance with the terms of the 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 the Business Combination has been consummated, and (ii) the
Company shall deliver to you written instructions with respect to the transfer
of the funds held in the Trust Account (the “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 the Representative, the portion
of
the Property attributable to the Deferred Discount (as defined in the
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
or be distributed immediately and the penalty incurred. Upon the distribution
of
all the funds in the Trust Account pursuant to the terms hereof, the 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 the funds held
in
the Trust Account shall be reinvested as provided in the Agreement on the
business day immediately following the Consummation Date as set forth in the
notice.
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Very
truly yours,
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Name:
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Title:
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EXHIBIT
B
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn.:
Xxxxxx Xxxxxx & Xxxxx Di Paolo
Re: Trust
Account No. [____________] Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between Chardan
2008 China Acquisition Corp. (the “Company”)
and
Continental Stock Transfer & Trust Company (“Trustee”),
dated
as of _____ __, 2008 (the “Agreement”),
this
letter 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 Agreement, we hereby authorize you, to commence
liquidation of the Trust Account. You will notify the Company and
(the
“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 Agreement shall be
terminated.
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Very
truly yours,
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Name:
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Title:
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