WARRANT PURCHASE AGREEMENT
WARRANT
PURCHASE AGREEMENT (this “Agreement”) made as of this ___________day of
February, 2008 among ASM Acquisition Company Limited, a Cayman Islands
corporation (the “Company”) and the undersigned (the “Purchasers”).
WHEREAS,
the Company has filed with the Securities and Exchange Commission (the “SEC”) a
registration statement on Form F-1, as amended (File No. 333-148549) (the
“Registration Statement”), in connection with the Company’s initial public
offering (the “IPO”) of 15,000,000 units (the “Units”), each unit consisting of
one of the Company’s ordinary shares, $0.001 par value (the “Ordinary Shares”),
and (ii) one warrant (the “Warrants”), each warrant to purchase one Ordinary
Share; and
WHEREAS,
immediately prior to the consummation of the IPO, the Company desires to sell
in
a private placement to the Purchasers (the “Placement”) an aggregate of
4,550,000 warrants (the “Placement Warrants”) substantially identical to the
Warrants being issued in the IPO pursuant to the terms and conditions hereof
and
as set forth in the Registration Statement, except that the Placement Warrants
to be issued in the Placement shall not be registered under the Securities
Act
of 1933, as amended (the “Securities Act”); and
WHEREAS,
each Purchaser desires to acquire the number of Placement Warrants set forth
opposite its name on Schedule
A
hereto;
and
WHEREAS,
except as provided herein, the Placement Warrants shall be governed by the
Warrant Agreement filed as an exhibit to the Registration Statement;
and
WHEREAS,
the Purchasers are entitled to registration rights with respect to the Placement
Warrants and the Ordinary Shares underlying the Placement Warrants (the
“Underlying Shares”) on the terms set forth in this Agreement;
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase
of Placement Warrants.
The
Purchasers hereby agree, directly or through their nominees, to purchase an
aggregate of 4,550,000 Placement Warrants at a purchase price of $1.00 per
Placement Warrant, or an aggregate of $4,550,000 (the “Purchase Price”). Such
purchases shall be in the names and amounts set forth on Schedule
A
hereto.
2. Closing.
The
closing of the purchase and sale of the Placement Warrants (the “Closing”) will
take place at such time and place as the parties may agree (the “Closing Date”),
but in no event later than one business day prior to the closing date (the
“IPO
Closing Date”) of the IPO. On or prior to the IPO Closing Date, the Purchasers
shall pay the Purchase Price by wire transfer of funds to Loeb & Loeb,
outside counsel for the Company. On the Closing Date, the Company shall cause
Loeb & Loeb to transfer the Purchase Price to the trust account maintained
by the Company’s transfer agent, acting as trustee (the “Trust Account”). The
certificates for the Placement Warrants shall be placed into escrow pursuant
to
the Securities Escrow Agreement dated the Closing Date by and among the
Company’s transfer agent and the other signatories thereto.
3. Representations
and Warranties of the Purchasers.
Each
Purchaser hereby represents and warrants to the Company that:
3.1 The
execution and delivery by the Purchasers of this Agreement and the fulfillment
of and compliance with the respective terms hereof by the Purchasers do not
and
shall not as of the Closing
conflict with or result in a breach of the terms, conditions or provisions
of
any other agreement, instrument, order, judgment or decree to which Purchasers
are subject to.
3.2 The
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
3.3 The
Placement Warrants are being acquired for the Purchaser’s own account, only for
investment purposes and not with a view to, or for resale in connection with,
any distribution or public offering thereof within the meaning of the Securities
Act.
3.4 The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
3.5 The
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the securities or the fairness or suitability of the investment
in the securities nor have such authorities passed upon or endorsed the merits
of the offering of the securities.
4. Registration
Rights.
The
Purchasers shall have registration rights pursuant to the Registration Rights
Agreement, dated the Closing Date, by and among the Company and the Investors
listed on the signature page thereto.
5. Waiver
of Claims Against Trust Account.
Each Purchaser hereby waives any and all right, title, interest or claim of
any
kind in or to any distributions from the Trust Account with respect to any
Ordinary Shares acquired by the Purchaser in connection with the exercise of
the
Placement Warrants purchased pursuant to this Agreement ("Claim") and hereby
waives any Claim the undersigned may have in the future as a result of, or
arising out of, any contracts or agreements with the Company and will not seek
recourse against the Trust Account for any reason whatsoever.
6. Legends;
Denominations
6.1 Legend.
The
Company will issue the Placement Warrants, and when issued the Underlying
Shares, purchased by Purchaser in the name of Purchaser and in such
denominations to be specified by Purchaser. The Placement Warrants and
Underlying Shares will bear the following legend and appropriate "stop transfer"
instructions:
2
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN A SECURITIES ESCROW AGREEMENT (THE “AGREEMENT”) AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE
TERM
OF THE ESCROW PERIOD (AS DEFINED IN THE AGREEMENT).
7. Forfeiture
of Warrants.
7.1. Failure
to Consummate Business Combination.
The
Placement Warrants shall be forfeited to the Company in the event the Company
does not consummate a business combination within 24 or 36 months from the
date
of the final prospectus relating to the Company’s IPO, as described in the
Registration Statement.
7.2. Termination
of Rights as holder; Escrow.
If the
Placement Warrants are forfeited in accordance with this Section 7, then after
such time the Purchaser (or successor in interest), shall no longer have any
rights as a holder of such Placement Warrants, and the Company shall take such
action as is appropriate to cancel such Placement Warrants. To effectuate the
foregoing, all certificates representing Placement Warrants shall be held in
escrow as provided in Section 2 hereof. In addition, Purchaser hereby
irrevocably grants the Company a limited power of attorney for the purpose
of
effectuating the foregoing.
8. Waiver
and Indemnification.
Each
Purchaser hereby waives any and all rights to assert any present or future
claims, including any right of rescission, against the Company or the
underwriters in the IPO with respect to their purchase of the Placement
Warrants, and each Purchaser agrees jointly and severally to indemnify and
hold
the Company and the underwriters in the IPO harmless from all losses, damages
or
expenses that relate to claims or proceedings brought against the Company or
such underwriters by Purchasers of the Placement Warrants.
9. Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same instrument. This Agreement or any counterpart may
be
executed via facsimile transmission, and any such executed facsimile copy shall
be treated as an original.
3
10. Governing
Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties 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. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the ____day
of February, 2008.
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ASM
ACQUISITION COMPANY LIMITED
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By:
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Name:
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Title:
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INSIDERS:
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ASM
SPAC(1) LIMITED
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By:
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Name: | |
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Title:
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[●]
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Xxxxxxx
Xxx
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Xxxxxxx
Xxxx
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| Xxxxxxx Xxxxxxx | ||
4
SCHEDULE
A
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Purchaser
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Placement
Warrants
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Purchase
Price
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|||||
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Xxxxxxx
Xxxxxxx
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56,875
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$
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56,875.00
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[●]
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227,500
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$
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227,500.00
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Xxxxxxx
Xxx
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227,500
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$
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227,500.00
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Xxxxxxx
Xxxx
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284,375
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$
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284,375.00
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ASM
SPAC(1) Limited
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3,753,750
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$
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3,753,750.00
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Total:
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4,550,000
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$
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4,550,000.00
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5
