INVESTMENT MANAGEMENT TRUST AGREEMENT
This
INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Agreement”) is made
as of [●], 2011 by and between China VantagePoint Acquisition Company (the
“Company”) and
Continental Stock Transfer & Trust Company (the “Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S−1, No. 333-170006 (the “Registration
Statement”), relating to the Company’s initial public offering of
securities (“IPO”) has been
declared effective as of the date hereof by the Securities and Exchange
Commission (the “Effective
Date”);
WHEREAS,
EarlyBirdCapital, Inc. is acting as the underwriter (the “Underwriter”) in the
IPO;
WHEREAS,
the Company will complete a private placement of an aggregate of 2,642,857
warrants at a price of $0.35 per warrant (the “Private Placement”)
immediately prior to the completion of the IPO;
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Amended and Restated Articles of Association, $15,000,000 of the net proceeds of
the IPO and the Private Placement ($17,171,250 if the Underwriters’
over-allotment option is exercised in full), 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, par value $0.001, issued in the
IPO. The amount to be delivered to the Trustee will be referred to
herein as the “Property,” and the
parties for whose benefit the Trustee shall hold the Property will be referred
to together with the Company as the “Beneficiaries”;
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.
NOW,
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Agreement
and Covenants of Trustee
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 (the “Trust Account”)
established by the Trustee at a branch of CitiBank, N.A. selected 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 instruction of the Company, to invest and reinvest the
Property in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days or
less or in any money market fund, selected by the Company meeting the condition
of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated under the
Investment Company Act of 1940;
(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) Promptly
notify the Company and the Underwriters 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;
(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 the Underwriter, 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) Commence
liquidation of the Trust Account only after receipt of and only in accordance
with the terms of a letter (the “Termination Letter”),
in a form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its Chief Executive Officer or
Chairman or other authorized 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; provided,
however, that in the event that a Termination Letter has not been received by
the Trustee by the date that is 24 months after the Effective Date (the “Last
Date”), the Trust Account shall be liquidated in accordance with the procedures
set forth in the Termination Letter attached as Exhibit B hereto and
distributed to the stockholders of record on the Last Date; and
(j) Distribute
the funds as directed in any Tax Disbursement Letter or Disbursement Letter, and
distribute, upon receipt of a Repurchase Notification Letter (as defined in
paragraph 2(f) below), to the Company’s shareholders whose securities have been
Repurchased (as defined in paragraph 2(f) below) an amount of up to $5.70, in
each case in accordance with paragraph 3 below.
2. Agreements
and Covenants of the Company
The
Company hereby agrees and covenants to:
(a) Give
all instructions to the Trustee hereunder in writing, signed by the Company’s
Chief Executive Officer. In addition, except with respect to its
duties under paragraph 1(i) 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 that the Company shall promptly
confirm such instructions in writing;
(b) Hold
the Trustee harmless and indemnify the Trustee from and against any and all
expenses, including reasonable counsel 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;
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(c) Pay
the Trustee an initial acceptance fee of $[●] and an annual fee of $[●] (it
being 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 shall pay the
annual fee on each 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 Account. The Company shall
not be responsible for any other fees or charges of the Trustee except as may be
provided in paragraph 2(b) hereof (it being expressly understood that the
Property shall not be used to make any payments to the Trustee under such
paragraph);
(d) In
connection with any Business Combination, provide to the Trustee an affidavit or
certificate of a firm regularly engaged in the business of soliciting proxies
and tabulating stockholder votes (which firm may be the Trustee) verifying the
vote of the Company’s stockholders regarding such Initial Business Combination
or Extension;
(e) In
all cases, provide the Representative with a copy of any Termination Letters
and/or any other correspondence that it sends to the Trustee with respect to any
proposed withdrawal from the Trust Account promptly after it issues the same;
and
3. Liquidation
and Distribution of Trust Account Property.
(a) The
Trustee shall commence liquidation of the Trust Account only upon receipt of,
and only in accordance with the terms of a Termination Letter in a form
substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its 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 any other documents
referred to therein; provided, however, that the Trustee shall disburse such
funds from the Trust Account (i) from time to time as may be necessary timely to
pay any taxes incurred as a result of interest or other income earned on the
Property held in the Trust Account or other tax obligations of the Company, only
upon receipt and in accordance with the terms of a letter in form substantially
similar to that attached hereto as Exhibit C (a “Tax Disbursement
Letter”), signed on behalf of the Company by its Chief Executive Officer
or Chairman and copied to Authorized Counsel (as defined below), as evidenced by
his or her countersignature thereto, and complete the disbursement of funds from
the Trust Account and distribute such funds only as directed in the Tax
Disbursement Letter and any other documents referred to therein; (ii) from time
to time as may be necessary for working capital purposes, only upon receipt and
in accordance with the terms of a letter in form substantially similar to that
attached hereto as Exhibit D (a “Disbursement
Letter”), signed on behalf of the Company by its Chief Executive Officer
or Chairman and copied to Authorized Counsel, as evidenced by his or her
countersignature thereto, the Trustee shall disburse to the Company such amount
as may be requested by the Company as directed in the Disbursement Letter and
the other documents referred to therein, provided, however, that the aggregate
amount distributed by the Trustee to the Company pursuant to this paragraph
3(a)(ii) may not exceed the aggregate amount of interest and any other income
actually received or paid on amounts in the Trust Account; and (iii) from time
to time as may be necessary to pay for the Company’s purchase of up to 50% of
the Subunits sold in the IPO pursuant to the Company’s 10b5-1 Plan, only upon
receipt and in accordance with the terms of a letter in form substantially
similar to that attached hereto as Exhibit E (a “10b5-1 Letter”),
signed on behalf of the Company by its Chief Executive Officer or Chairman and
copied to Authorized Counsel, as evidenced by his or her countersignature
thereto, the Trustee shall disburse to the Company such amount as may be
requested by the Company as directed in the 10b5-1 Letter. “Authorized Counsel”
shall mean, at any date, the attorney retained and authorized by the Company to
perform such functions.
3
(b) The
limited distributions referred to in paragraphs 3(a)(i) and 3(a)(ii) above
shall be made only from interest and any other income collected on the Property.
Except as provided in paragraph 3(a) above, no other distributions from the
Trust Account shall be permitted except in accordance with paragraph 1(i)
hereof.
4. Limitations
of Liability.
The
Trustee shall have no responsibility or liability to:
(a) take
any action with respect to the Property, other than as directed in
paragraphs 1 and 3 hereof and the Trustee shall have no liability to any
party except for liability arising out of its own gross negligence or willful
misconduct;
(b) 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 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;
(c) change
the investment of any Property, other than in compliance with paragraph
1(c);
(d) refund
any depreciation in principal of any Property;
(e) 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;
(f) the
other parties hereto 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;
(g) verify
the correctness of the information set forth in the Registration Statement or to
confirm or assure that any acquisition made by the Company or any other action
taken by it is as contemplated by the Registration Statement; or
(h) subject
to the requirements of paragraph 3 of this Agreement, pay any taxes on behalf of
the Trust Account to any governmental entity or taxing authority.
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5. 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. 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 paragraph 1(i) hereof, and distributed the
Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate except with respect to paragraph 2(b).
6. Miscellaneous.
(a) In
executing funds transfers, the Trustee will rely upon account numbers or other
identifying numbers of a beneficiary, beneficiary’s bank or intermediary bank,
rather than names. The Trustee shall not be liable for any loss,
liability or expense resulting from any error in an account number or other
identifying number, provided it has accurately transmitted the numbers
provided.
(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. Except for Sections 1(i)
and 3(a) (which may not be modified, amended or deleted without the affirmative
vote of 75% of the then outstanding Subunits except that no such amendment will
affect any public shareholder who has otherwise either indicated his election to
redeem his Subunits), this Agreement or any provision hereof may only be
changed, amended or modified by a writing signed by each of the parties
hereto. 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.
(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:
[____________________]
[____________________]
[____________________]
[____________________]
Fax No.:
[●]
5
Attn:
[●]
if to the
Company, to:
000
Xxxxxxxx Xxxxxx, #000
Xxxxx, XX
00000
Fax No.:
[ • ]
Attn: Xxx
Xx, Chief Executive Officer
in either
case with a copy to:
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Fax No:
[ • ]
Attn:
Xxxxxx Xxxxxx
and
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxxxx,
Esq.Xxxxxxxx Xxxxxx
and
Xxxxxxxx Xxxxxx
The Chrysler Buidling
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Fax No.:
(000) 000-0000
Attn: Xxxxx Xxxx Xxxxxx,
Esq.
(f) This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representative.
(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.
(h) 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, and 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. In the event
the Trustee has a claim against the Company under this Agreement, including,
without limitation, under paragraph 2(b), the Trustee will pursue such
claim solely against the Company and not against the Property held in the Trust
Account.
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[Signature Page
Follows]
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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:
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Title:
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By:
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Name:
Xxx Xx
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Title:
Chief Executive Officer
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(Signature
Page)
Exhibit
A
[LETTERHEAD
OF COMPANY]
[date]
[Transfer
Agent]
[Address]
Re: Trust Account No. [●]
Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between China
VantagePoint Acquisition Company (the “Company”) and [____________]
(the “Trustee”), dated as
of [●], 2011 (the “Trust Agreement”),
this is to advise you that the Company has entered into an agreement (the “Business Agreement”)
with [●] (the “Target
Business”) to consummate a business combination with the Target Business
(the “Business
Combination”) on or about [●]. The Company shall notify you at
least 48 hours in advance of the actual date of the consummation of the Business
Combination (the “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 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 [(a) [an affidavit] [a certificate] of _________,
which verifies the vote of the Company’s shareholders in connection with the
Business Combination and (b)]1 joint 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 immediately upon your receipt of written
notice from counsel and the Instruction Letter (a) to the public stockholders
who exercised their redemption rights in connection with the Business
Combination in an amount equal to their pro rata share of the amounts in the
Trust Account as of two business days prior to the Consummation Date (including
any income actually received on the Trust Account balance and held in the Trust
Account, but less an amount equal to estimated taxes that are or will be due on
such income at an assumed rate of 40% relating to the shares for which
shareholders have exercised redemption rights in connection with the vote of
shareholders for the Business Combination, provided that such stockholders have
tendered the applicable shares of the Company’s common stock to the Trustee; and
(b) the remainder 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 Trust Agreement shall be terminated and the
Trust Account closed.
1
Include only if there is a shareholder
vote.
A-1
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 Trust 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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By:
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Name:
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Title:
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Affirmed:
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By:
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Name:
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Title:
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cc:
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EarlyBirdCapital,
Inc.
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A-2
Exhibit
B
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re: Trust Account No. [●]
Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between China
VantagePoint Acquisition Company (the “Company”) and
[_____________] (the “Trustee”), dated as
of [●], 2011 (the “Trust Agreement”),
this is to advise you that (i) the Company has been unable to effect a Business
Combination within the time frame specified in the Amended and Restated Articles
of Association of the Company, (ii) the Company’s existence expired in
accordance with the terms of its Amended and Restated Articles of Association on
[●]; and (iii) the Company is proceeding to dissolve and liquidate.
Capitalized
terms used but not defined herein shall have the meanings given them in the
Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize and
request that you commence liquidation of the Trust Account as part of the
Company’s plan of dissolution and distribution. In connection with
this liquidation, you are hereby authorized to establish a record date for the
purposes of determining the stockholders of record entitled to receive their per
share portion of the Trust Account. The record date shall be within
10 days of the liquidation date, or as soon thereafter as is
practicable. Company has appointed [●] to serve as its designated
paying agent (the “Designated Paying
Agent”). 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 (the “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.
B-1
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 and the
Trust Account closed.
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Very
truly yours,
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By:
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Name:
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Title:
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Affirmed:
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By:
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Name:
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Title:
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cc:
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EarlyBirdCapital,
Inc.
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B-2
Exhibit
C
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re: Trust Account No. [●] Tax
Disbursement Letter
Gentlemen:
Pursuant
to paragraph 3(a)(i) of the Investment Management Trust Agreement between China
VantagePoint Acquisition Company (the “Company”) and
[______________] (the “Trustee”) dated as of
[●] (the “Trust
Agreement”), this is to advise you that the Trust Account, as defined in
the Trust Agreement, has incurred a total of [●] in taxes (the “Tax Payments”) for
the period from [●], 200[●] to [●], 200[●] (the “Tax Period”) as a
result of interest and other income earned on the Property, as defined in the
Trust Agreement or other tax obligations of the Company, in each case during the
Tax Period.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
distribute from the Trust Account proceeds from the Property (as defined in the
Trust Agreement) equal to the aggregate Tax Payments on such dates, in such
amounts and to such payees as indicated on the Schedule of Tax Payments attached
hereto as Schedule 1. All checks should be delivered to the Company
at [address].
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Very
truly yours,
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By:
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Name:
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Title:
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Authorized
Counsel Signatory:
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By:
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Name:
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Title:
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cc:
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EarlyBirdCapital,
Inc.
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C-1
Schedule
1
Schedule
of Tax Payments
Payment
Date: [●]
Amount: [●]
Payee: [●]
Payment
Date: [●]
Amount: [●]
Payee: [●]
Payment
Date: [●]
Amount: [●]
Payee: [●]
C-2
Exhibit
D
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re: Trust Account No. [●]
Disbursement Letter
Gentlemen:
Pursuant
to paragraph 3(a)(ii) of the Investment Management Trust Agreement between
China VantagePoint Acquisition Company (the “Company”) and
[_____________________] dated as of [●] (the “Trust Agreement”), we
hereby authorize you to disburse from the Trust Account proceeds from the
Property, as defined in the Trust Agreement, equal to $[●], to [●] via wire
transfer on [●], 200[●].
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Very
truly yours,
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CHINA
VANTAGEPOINT ACQUISITION COMPANY
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By:
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Name:
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Title:
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Authorized
Counsel Signatory:
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By:
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Name:
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Title:
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cc:
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EarlyBirdCapital,
Inc.
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D-1
Exhibit
E
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re: Trust Account No. [●]
Purchases of Subunits
Gentlemen:
Pursuant
to paragraph 3(a)(iii) of the Investment Management Trust Agreement between
China VantagePoint Acquisition Company (the “Company”) and
[_________] dated as of [●] (the “Trust Agreement”),
pursuant to the instructions attached hereto as Schedule A, you are instructed
to distribute funds held in the Trust Account to those shareholders listed on
Schedule A, from whom the Company has made purchases of Subunits pursuant to the
Company’s 10b5-1 Plan.
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CHINA
VANTAGEPOINT ACQUISITION COMPANY
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By:
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Name:
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Title:
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Authorized
Counsel Signatory:
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By:
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Name:
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Title:
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cc:
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EarlyBirdCapital,
Inc.
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E-1
