THE REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL,...
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION, BY ITS ACCEPTANCE HEREOF, AGREES
THAT
IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION, EXCEPT AS HEREIN
PROVIDED, AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT
WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION UNTIL
JULY 16, 2009 [18
MONTHS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW)]
IN ACCORDANCE WITH FINRA RULE 2710(g)(1) TO ANYONE OTHER THAN (I) MAXIM GROUP
LLC AND ITS AFFILIATES ("MAXIM") OR AN UNDERWRITER OR A SELECTED DEALER IN
CONNECTION WITH THE OFFERING (DEFINED HEREIN), OR (II) A BONA FIDE OFFICER,
PARTNER OR EMPLOYEE OF MAXIM OR OF ANY SUCH UNDERWRITER OR SELECTED
DEALER.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE CONSUMMATION BY ASIA SPECIAL
SITUATION ACQUISITION CORP. ("COMPANY") OF A CAPITAL STOCK EXCHANGE, ASSET
OR
STOCK ACQUISITION, CONTRACTUAL ARRANGEMENT IN WHICH THE COMPANY ACQUIRES
CONTROL
OF A TARGET BUSINESS OR OTHER SIMILAR BUSINESS COMBINATION ("BUSINESS
COMBINATION") (AS DESCRIBED MORE FULLY IN THE COMPANY'S REGISTRATION STATEMENT.
THIS PURCHASE OPTION SHALL BE VOID AFTER 5:00 P.M. EASTERN TIME, JANUARY
16,
2013.
UNIT
PURCHASE OPTION
FOR
THE PURCHASE OF
95,000
UNITS
OF
1.
Purchase
Option.
THIS
CERTIFIES THAT, in consideration of $100 duly paid by or on behalf of CRT
Capital Group LLC (collectively, with its successors and permitted assigns
and/or transferees, the "Holder"), as registered owner of this Purchase Option,
to Asia Special Situation Acquisition Corp. (the "Company"), Holder is entitled,
at any time or from time to time after the consummation of a Business
Combination ("Commencement Date"), and at or before 5:00 p.m., Eastern Time,
January 16, 2013 ("Expiration Date"), but not thereafter, to subscribe for,
purchase and receive, in whole or in part, up to Ninety-Five Thousand (95,000)
units (the "Units") of the Company, each Unit consisting of one ordinary
share
of the Company, par value $0.0001 per share (the "Ordinary Shares"), and
one
warrant (the "Warrant") expiring four (4) years from the effective date
("Effective Date") of the registration statement ("Registration Statement")
pursuant to which Units are offered for sale to the public (the "Offering").
Each Warrant contains the same terms and conditions as the warrants included
in
the Units being registered for sale to the public by way of the Registration
Statement (the "Public Warrants"), including that the Warrants underlying
the
Units comprising this Purchase Option which have an exercise price of $7.50
per
share. If the Expiration Date is a day on which banking institutions are
authorized by law to close, then this Purchase Option may be exercised on
the
next succeeding day which is not such a day in accordance with the terms
herein.
During the period ending on the Expiration Date, the Company agrees not to
take
any action that would terminate the Purchase Option. This Purchase Option
is
initially exercisable at $12.50 per Unit so purchased; provided, however,
that
upon the occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Purchase Option, including the exercise price per
Unit
and the number of Units (and Ordinary
Shares
and Warrants) to be received upon such exercise, shall be adjusted as therein
specified. The term "Exercise Price" shall mean the initial exercise price
or
the adjusted exercise price, depending on the context.
2.
Exercise.
2.1
Exercise Form. In order to exercise this Purchase Option, the exercise form
attached hereto must be duly executed and completed and delivered to the
Company, together with this Purchase Option and payment of the Exercise
Price for the Units being purchased payable in cash or by certified check
or
official bank check. If the subscription rights represented hereby shall
not be
exercised at or before 5:00 p.m., New York City Time, on the Expiration Date,
this Purchase Option shall become and be void without further force or effect,
and all rights represented hereby shall cease and expire.
2.2
Legend. Each certificate for the securities purchased under this Purchase
Option
shall bear a legend as follows, unless such securities have been registered
under the Securities Act of 1933, as amended (the "Act"):
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT") OR APPLICABLE STATE LAW. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED, IN
WHOLE
OR IN PART, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE
STATE LAW."
2.3
Cashless Exercise. In lieu of the payment of the Exercise Price multiplied
by
the number of Units for which this Purchase Option is exercisable (and in
lieu
of being entitled to receive Ordinary
Shares
and Warrants) in the manner required by Section 2.1, the Holder shall have
the
right (but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units (the "Conversion Right") as follows:
upon exercise of the Conversion Right, the Company shall deliver to the Holder
(without payment by the Holder of any of the Exercise Price in cash) that
number
of Ordinary
Shares
and Warrants comprising that number of Units equal to the quotient obtained
by
dividing (x) the "Value" (as defined below) of the portion of the Purchase
Option being converted by (y) the Current Market Value (as defined below)
of the
portion of the Purchase Option being converted. The "Value" of the portion
of
the Purchase Option being converted shall equal the remainder derived from
subtracting (a) (i) the Exercise Price multiplied by (ii) the number of Units
underlying the portion of this Purchase Option being converted from (b) the
Current Market Value of a Unit multiplied by the number of Units underlying
the
portion of the Purchase Option being converted. As used herein, the term
"Current Market Value" per Unit at any date means: (A) in the event that
neither
the Units nor Warrants are still trading, the remainder derived from subtracting
(x) the exercise price of the Warrants multiplied by the number of Ordinary
Shares
issuable upon exercise of the Warrants underlying one Unit from (y) (i) the
Current Market Price of the Ordinary
Shares
multiplied by (ii) the number of Ordinary
Shares
underlying one Unit, which shall include the Ordinary
Shares
underlying the Warrants included in such Unit; (B) in the event that the
Units,
Ordinary
Shares
and Public Warrants are still trading, (i) if the Units are listed on a national
securities exchange or quoted on the Nasdaq Global Select Market, Nasdaq
Global
Market, Nasdaq Capital Market or OTC Bulletin Board (or successor such as
the
Bulletin Board Exchange), the last sale price of the Units in the principal
trading market for the Units as reported by the exchange, Nasdaq or the FINRA,
as the case may be, on the last trading day preceding the date in question;
or
(ii) if the Units are not listed on a national securities exchange or quoted
on
the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market
or
the OTC Bulletin Board (or successor exchange), but is traded in the residual
over-the-counter market, the closing bid price for Units on the last trading
day
preceding the date in question for which such quotations are reported by
the
Pink Sheets, LLC or similar publisher of such quotations; and (C) in the
event
that the Units are not still trading but the Ordinary
Shares
and Warrants underlying the Units are still trading, the Current Market Price
of
the Ordinary
Shares
plus the product of (x) the Current Market Price of the Warrants and (y)
the
number of Ordinary
Shares
underlying the Warrants included in one Unit. The "Current Market Price"
shall
mean (i) if the Ordinary
Shares
(or Warrants, as the case may be) is listed on a national securities exchange
or
quoted on the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital
Market or OTC Bulletin Board (or successor such as the Bulletin Board Exchange),
the last sale price of the Ordinary
Shares
(or Warrants) in the principal trading market for the Ordinary
Shares
as reported by the exchange, Nasdaq or the FINRA, as the case may be, on
the
last trading day preceding the date in question; (ii) if the Ordinary
Shares
(or Warrants, as the case may be) is not listed on a national securities
exchange or quoted on the Nasdaq Global Select Market, Nasdaq Global Market,
Nasdaq Capital Market or the OTC Bulletin Board (or successor exchange),
but is
traded in the residual over-the-counter market, the closing bid price for
the
Ordinary
Shares
(or Warrants) on the last trading day preceding the date in question for
which
such quotations are reported by the Pink Sheets, LLC or similar publisher
of
such quotations; and (iii) if the fair market value of the Ordinary
Shares
cannot be determined pursuant to clause (i) or (ii) above, such price as
the
Board of Directors of the Company shall determine, in good faith. In the
event
the Public Warrants have expired and are no longer exercisable, no "Value"
shall
be attributed to the Warrants underlying this Purchase Option. Additionally,
in
the event that this Purchase Option is exercised pursuant to this Section
2.3
and the Public Warrants are still trading, the "Value" shall be reduced by
the
difference between the Warrant Exercise Price and the exercise price of the
Public Warrants multiplied by the number of Warrants underlying the Units
included in the portion of this Purchase Option being converted.
2.4
Mechanics of Cashless Exercise. The Cashless Exercise Right may be exercised
by
the Holder on any business day on or after the Commencement Date and not
later
than the Expiration Date by delivering the Purchase Option with the duly
executed exercise form attached hereto with the cashless exercise section
completed to the Company, exercising the Cashless Exercise Right and specifying
the total number of Units the Holder will purchase pursuant to such Cashless
Exercise Right.
2.5
No Net
Cash Settlements or Damages Upon Failure of Registration. In no event shall
the
registered Holder of this Purchase Option be entitled to (i) net cash settlement
of this Purchase Option or the Warrants underlying the Purchase Option,
regardless of whether any or all of the Registrable Securities have been
registered by the Company pursuant to an effective registration statement,
or
(ii) receive
any damages if any or all of the Registrable Securities have not been registered
by the Company pursuant to an effective registration statement, subject to
the
requirement that the Company use its best efforts to have a registration
statement or post-effective amendment declared effective as soon as possible
after receiving the Initial Demand Notice.
The holder of the Warrants underlying the Purchase Option will not be entitled
to exercise the Warrants underlying such Purchase Option unless a registration
statement is effective, or an exemption from the registration requirements
is
available at such time and, if the holder does not, or is not able to, exercise
the Warrants underlying the Purchase Option the Warrants will expire worthless.
3.
Transfer.
3.1
General Restrictions. The registered Holder of this Purchase Option, by its
acceptance hereof, agrees that it will not sell, transfer, assign, pledge
or
hypothecate this Purchase Option, or the securities issuable upon exercise
of
the Purchase Option, until July 16, 2009 [18
months following the Effective Date]
in accordance with FINRA Rule 2710(g)(1) to anyone other than (i) Maxim or
an
underwriter or a selected dealer in connection with the Offering, or (ii)
a bona
fide officer or partner of Maxim or of any such underwriter or selected dealer.
On and after July 16, 2009
[18 months from the Effective Date],
transfers to others may be made subject to compliance with or exemptions
from
applicable securities laws. In order to make any permitted assignment, the
Holder must deliver to the Company the assignment form attached hereto duly
executed and completed, together with the Purchase Option and payment of
all
transfer taxes, if any, payable in connection therewith. The Company shall
within five business days transfer this Purchase Option on the books of the
Company and shall execute and deliver a new Purchase Option or Purchase Options
of like tenor to the appropriate assignee(s) expressly evidencing the right
to
purchase the aggregate number of Units purchasable hereunder or such portion
of
such number as shall be contemplated by any such assignment.
3.2
Restrictions Imposed by the Act. The securities evidenced by this Purchase
Option shall not be transferred unless and until (i) the Company has received
the opinion of counsel for the Holder that the securities may be transferred
pursuant to an exemption from registration under the Act and applicable state
securities laws, the availability of which is established to the reasonable
satisfaction of the Company (the Company hereby agreeing that the opinion
of
Xxxxxxxxxx & Xxxxx LLP shall be deemed satisfactory evidence of the
availability of an exemption), or (ii) a registration statement or a
post-effective
amendment to the Registration Statement relating to such securities has been
filed by the Company and declared effective by the Securities and Exchange
Commission (“SEC”) and compliance with applicable state securities law has been
established.
4.
New
Purchase Options to be Issued.
4.1
Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof,
this Purchase Option may be exercised or assigned in whole or in part. In
the
event of the exercise or assignment hereof in part only, upon surrender of
this
Purchase Option for cancellation, together with the duly executed exercise
or
assignment form and, except in the case of an exercise of this Purchase Option
contemplated by Section 2.3 hereof, funds sufficient to pay any Exercise
Price
and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Purchase Option of like tenor to this Purchase
Option in the name of the Holder evidencing the right of the Holder to purchase
the number of Units purchasable hereunder as to which this Purchase Option
has
not been exercised or assigned.
4.2
Lost Certificate. Upon receipt by the Company of evidence satisfactory to
it of
the loss, theft, destruction or mutilation of this Purchase Option and of
reasonably satisfactory indemnification or the posting of a bond, the Company
shall execute and deliver a new Purchase Option of like tenor and date. Any
such
new Purchase Option executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual obligation
on the part of the Company.
5.
Registration Rights.
5.1
Demand
Registration.
5.1.1
Grant of Right. The Company, upon written demand (an "Initial Demand Notice")
of
the holder(s) of at least an aggregate of 51% of all outstanding Purchase
Options issued by the Company and/or the underlying Units and/or the underlying
securities (the "Majority Holders"), agrees to use its best efforts to register
on one occasion, all or any portion of
the Purchase Options requested by the Majority Holders in the Initial Demand
Notice and all of the securities underlying such Purchase Options, including
the
Units, Ordinary
Shares,
the Warrants and the Ordinary
Shares
underlying the Warrants(collectively, the "Registrable Securities"). On such
occasion, the Company will use its best efforts to file a registration statement
or a post-effective amendment to the Registration Statement covering the
Registrable Securities within sixty days after receipt of the Initial Demand
Notice and use its best efforts to have such registration statement or
post-effective amendment declared effective as soon as possible thereafter.
The
demand for registration may be made at any time during a period of five years
beginning on the Effective Date. The Initial Demand Notice shall specify
the
number of shares of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all holders of
the
Purchase Options and/or Registrable Securities of the demand within ten days
from the date of the receipt of any such Initial Demand Notice. Each holder
of
Registrable Securities who wishes to include all or a portion of such holder's
Registrable Securities in the Demand Registration (each such holder including
shares of Registrable Securities in such registration, a "Demanding Holder")
shall so notify the Company within fifteen (15) days after the receipt by
the
holder of the notice from the Company. Upon any such request, the Demanding
Holders shall be entitled to have their Registrable Securities included in
the
Demand Registration, subject to Section 5.2.1.
5.1.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting commissions.
The
Company agrees to use its reasonable
best efforts to qualify or register the Registrable Securities in such States
as
are reasonably requested by the Majority Holder(s); provided, however, that
in
no event shall the Company be required to register the Registrable Securities
in
a State in which such registration would cause (i) the Company to be obligated
to qualify to do business in such State, or would subject the Company to
taxation as a foreign corporation doing business in such jurisdiction or
(ii)
the principal stockholders of the Company to be obligated to escrow their
shares
of capital stock of the Company. The Company shall use its
best efforts to cause any registration statement or post-effective amendment
filed pursuant to the demand rights granted under Section 5.1.1 to remain
effective for a period of nine (9) months from the effective date of such
registration statement or post-effective amendment.
5.2
"Piggy-Back" Registration.
5.2.1
Grant of Right. In addition to the demand right of registration, the Holders
of
the Purchase Options shall have the right for a period of seven years commencing
on the Effective Date, to include the Registrable Securities as part of any
other registration of securities filed by the Company (other than in connection
with a transaction contemplated by Rule 145(a) promulgated under the Act
or
pursuant to Form S-8); provided, however, that if, in the written opinion
of the
Company's managing underwriter or underwriters, if any, for such offering,
the
inclusion of the Registrable Securities, when added to the securities being
registered by the Company or the selling stockholder(s), will exceed the
maximum
amount of the Company's securities (the "Maximum Number of Shares") which
can be
marketed (i) at a price reasonably related to their then current market value,
and (ii) without materially and adversely affecting the entire offering,
then
the Company shall include
in any such registration:
(i)
If the registration is undertaken for the Company's account: (A) first, the
Ordinary
Shares
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (B) second, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clause
(A),
the Ordinary
Shares,
if any, including the Registrable Securities, as to which registration has
been
requested pursuant to written contractual piggy-back registration rights
of
security holders (pro rata in accordance with the number of Ordinary
Shares
which each such person has actually requested to be included in such
registration, regardless of the number of Ordinary
Shares
with respect to which such persons have the right to request such inclusion)
that can be sold without exceeding the Maximum Number of Shares;
and
(ii)
If the registration is a "demand" registration undertaken at the demand of
persons other than the holders of Registrable Securities pursuant to written
contractual arrangements with such persons, (A) first, the Ordinary
Shares
for the account of the demanding persons that can be sold without exceeding
the
Maximum Number of Shares; (B) second, to the extent that the Maximum Number
of
Shares has not been reached under the foregoing clause (A), the Ordinary
Shares
or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; and (C) third, to the extent that
the
Maximum Number of Shares has not been reached under the foregoing clauses
(A)
and (B), the Registrable Securities as to which registration has been requested
under this Section 5.2 (pro rata in accordance with the number of shares
of
Registrable Securities held by each such holder); and (D) fourth, to the
extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the Ordinary
Shares
if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights which other shareholders desire
to
sell that can be sold without exceeding the Maximum Number of
Shares.
5.2.2
Terms. The Company shall bear all fees and expenses attendant to registering
the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities but the Holders shall pay any and all underwriting commissions
related to the Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the then Holders of outstanding
Registrable Securities with not less than fifteen days written notice prior
to
the proposed date of filing of such registration statement.
Such notice to the Holders shall continue to be given for each applicable
registration statement filed (during the period in which the Purchase Option
is
exercisable) by the Company until such time as all of the Registrable Securities
have been registered and sold. The holders of the Registrable Securities
shall
exercise the "piggy-back" rights provided for herein by giving written notice,
within ten days of the receipt of the Company's notice of its intention to
file
a registration statement. The Company shall use its best efforts to cause
any
registration statement filed pursuant to the above "piggyback" rights to
remain
effective for at least nine months from the date that the Holders of the
Registrable Securities are first given the opportunity to sell all of such
securities. The Company agrees, at its sole expenses, to use its reasonable
best
efforts to qualify or register the Registrable Securities in such States
as are
reasonably requested by the Majority Holder(s); provided, however,
that in no event shall the Company be required to register the Registrable
Securities in a State in which such registration would cause (i) the Company
to
be obligated to qualify to do business in such State, or would subject the
Company to taxation as a foreign corporation doing business in such jurisdiction
or (ii) the principal stockholders of the Company to be obligated to escrow
their shares of capital stock of the Company.
5.3
General
Terms.
5.3.1
Indemnification. The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement hereunder and
each
person, if any, who controls such Holders within the meaning of Section 15
of
the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
(the
"Exchange Act"), and any of their
respective heirs, successors, permitted assigns and transfers, and agents
and
representatives, against all loss, claim, damage, expense or liability
(including all reasonable attorneys' fees and other expenses reasonably incurred
in investigating, preparing or defending against litigation, commenced or
threatened, or any claim whatsoever whether arising out of any action between
the underwriter and the Company or between the underwriter and any third
party
or otherwise) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement but only
to
the same extent and with the same effect as the provisions pursuant to which
the
Company has agreed to indemnify the underwriters contained in Section 5.1
of the
Underwriting Agreement between the Company, Maxim and the other underwriters
named therein dated the Effective Date. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement
to
the same extent and with the same effect as the provisions contained in Section
5.2 of the Underwriting Agreement pursuant to which the underwriters have
agreed
to indemnify the Company.
5.3.2
Exercise of Purchase Options. Nothing contained in this Purchase Option shall
be
construed as requiring the Holder(s) to exercise their Purchase Options or
Warrants underlying such Purchase Options prior to or after the initial filing
of any registration statement or the effectiveness thereof.
5.3.3
Documents Delivered to Holders. The Company shall furnish Maxim, as
representative of the Holders participating in any of the foregoing offerings,
a
signed counterpart, addressed to the participating Holders, of (i) an opinion
of
counsel to the Company, dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, an opinion
dated the date of the closing under any underwriting agreement related thereto),
and (ii) a "cold comfort" letter dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering,
a
letter dated the date of the closing under the underwriting agreement) signed
by
the independent public accountants who have issued a report on the Company's
financial statements included in such registration statement, in each case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company shall also deliver promptly to Maxim,
as
representative of the Holders participating in the offering, the correspondence
and memoranda described below and copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda relating
to discussions with the Commission or its staff with respect to the registration
statement and permit Maxim, as representative of the Holders, to do such
investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of the Financial
Industry Regulatory Authority (the "FINRA"). Such investigation shall include
access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to
such
reasonable extent and at such reasonable times and as often as Maxim, as
representative of the Holders, shall reasonably request. The Company shall
not
be required to disclose any confidential information or other records to
Maxim,
as representative of the Holders, or to any other person, until and unless
such
persons shall have entered into reasonable confidentiality agreements (in
form
and substance reasonably satisfactory to the Company), with the Company with
respect thereto.
5.3.4
Underwriting Agreement. The Company shall enter into an underwriting agreement
with the managing underwriter(s), if any, selected by any Holders whose
Registrable Securities are being registered pursuant to this Section 5, which
managing underwriter shall be reasonably acceptable to the Company. Such
agreement shall be reasonably satisfactory in form and substance to the Company,
each Holder and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such other terms
as
are customarily contained in agreements of that type used
by the managing underwriter. The Holders shall be parties to any underwriting
agreement relating to an underwritten sale of their Registrable Securities
and
may, at their option, require that any or all the representations, warranties
and covenants of the Company to or for the benefit of such underwriters shall
also be made to and for the benefit of such Holders. Such
Holders shall not be required to make any representations or warranties to
or
agreements with the Company or the underwriters except as they may relate
to
such Holders and their intended methods of distribution. Such Holders, however,
shall
agree to such covenants and indemnification and contribution obligations
for
selling stockholders as are customarily contained in agreements of that type
used by the managing underwriter. Further, such Holders shall execute
appropriate custody agreements and otherwise cooperate fully in the preparation
of the registration statement and other documents relating to any offering
in
which they include securities pursuant to this Section 5. Each Holder shall
also
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
5.3.5
Rule 144 Sale. Notwithstanding anything contained in this Section 5 to the
contrary, the Company shall have no obligation pursuant to Sections 5.1 or
5.2
to use its best efforts to obtain the registration of Registrable Securities
held by any Holder (i) where such Holder would then be entitled to sell under
Rule 144 within any three month period (or such other period prescribed under
Rule 144 as may be provided by amendment thereof) all of the Registrable
Securities held by such Holder, and (ii) where the number of Registrable
Securities held by such Holder is within the volume limitations
under paragraph (e) of Rule 144 (calculated as if such Holder were an affiliate
within the meaning of Rule 144).
5.3.6
Supplemental Prospectus. Each Holder agrees, that upon receipt of any notice
from the Company of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading in light of the circumstances then existing, such Holder will
immediately discontinue disposition of Registrable Securities pursuant to
the
Registration Statement covering such Registrable Securities until
such Xxxxxx's receipt of the copies of a supplemental or amended prospectus,
and, if so desired by the Company, such Holder shall deliver to the Company
(at
the expense of the Company) or destroy (and deliver to the Company a certificate
of such destruction) all copies, other than permanent file copies then in
such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
6.
Adjustments.
6.1
Adjustments to Exercise Price and Number of Securities. The Exercise Price
and
the number of Units underlying the Purchase Option shall be subject to
adjustment from time to time as hereinafter set forth:
6.1.1
Stock Dividends - Split-Ups. If after the date hereof, and subject to the
provisions of this Section 6, the number of outstanding Ordinary
Shares
is increased by a stock dividend payable in Ordinary
Shares
or by a split-up of Ordinary
Shares
or other similar event, then, on the effective date thereof, the number of
Ordinary
Shares
underlying each of the Units purchasable hereunder shall be increased in
proportion to such increase in outstanding shares. In such case, the number
of
Ordinary
Shares,
and the exercise price applicable thereto, underlying the Warrants underlying
each of the Units purchasable hereunder shall be adjusted in accordance with
the
terms of the Warrants. For example, if the Company declares a two-for-one
stock
dividend and at the time of such dividend this Purchase Option is for the
purchase of one Unit at $12.50 per whole Unit (the Warrant underlying the
Unit
is exercisable for $7.50 per share), upon effectiveness of the dividend,
this
Purchase Option will be adjusted to allow for the purchase of one Unit at
$12.50
per Unit, each Unit entitling the holder to receive two Ordinary
Shares
and two Warrants (each Warrant exercisable for $3.75 per share).
6.1.2
Aggregation of Shares. If after the date hereof, and subject to the provisions
of Section 6.4, the number of outstanding Ordinary
Shares
is decreased by a consolidation, combination or reclassification of Ordinary
Shares
or other similar event, then, on the effective date thereof, the number of
Ordinary
Shares
underlying each of the Units purchasable hereunder shall be decreased in
proportion to such decrease in outstanding shares. In such case, the number
of
Ordinary
Shares,
and the exercise price applicable thereto, underlying the Warrants underlying
each of the Units purchasable hereunder shall be adjusted in accordance with
the
terms of the Warrants.
6.1.3
Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding Ordinary
Shares
other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely
affects the par value of such Ordinary
Shares,
or in the case of any merger or consolidation of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding Ordinary
Shares),
or in the case of any sale or conveyance to another corporation or entity
of the
property of the Company in its entirety or substantially in its entirety
in
connection with which the Company is dissolved, the Holder of this Purchase
Option shall have the right thereafter (until the expiration of the right
of
exercise of this Purchase Option) to receive upon the exercise hereof, for
the
same aggregate Exercise Price payable hereunder immediately prior to such
event,
the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such reclassification, reorganization, merger
or consolidation, or upon a dissolution following any such sale or transfer,
by
a Holder of the number of Ordinary
Shares
of the Company obtainable upon exercise of this Purchase Option and the
underlying Warrants immediately prior to such event; and if any reclassification
also results in a change in Ordinary
Shares
covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant
to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section
6.1.3 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
6.1.4
Changes in Purchase Option. This Purchase Option need not be changed because
of
any change pursuant to this Section, and Purchase Options issued after such
change may state the same Exercise Price and the same number of Units as
are
stated in the Purchase Options initially issued pursuant to this Agreement.
The
acceptance by any Holder of the issuance of new Purchase Options reflecting
a
required or permissive change shall not be deemed to waive any rights to
an
adjustment occurring after the Commencement Date or the computation
thereof.
6.2
Substitute Purchase Option. In case of any consolidation of the Company with,
or
merger of the Company with, or merger of the Company into, another corporation
(other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Ordinary
Shares),
the corporation formed by such consolidation or merger shall execute and
deliver
to the Holder a supplemental Purchase Option providing that the holder of
each
Purchase Option then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Option) to receive,
upon exercise of such Purchase Option, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger,
by a holder of the number of Ordinary
Shares
of the Company for which such Purchase Option might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental Purchase Option shall provide for adjustments which shall be
identical to the adjustments provided in Section
6. The above provision of this Section shall similarly apply to successive
consolidations or mergers.
6.3
Elimination of Fractional Interests. The Company shall not be required to
issue
certificates representing fractions of Ordinary
Shares
or Warrants upon the exercise of the Purchase Option, nor shall it be required
to issue scrip or pay cash in lieu of any fractional interests, it being
the
intent of the parties that all fractional interests shall be eliminated
by rounding any fraction up or down to the nearest whole number of Warrants,
Ordinary
Shares
or other securities, properties or rights.
7.
Reservation and Listing. The Company shall at all times reserve and keep
available out of its authorized Ordinary
Shares,
solely for the purpose of issuance upon exercise of the Purchase Options
or the
Warrants underlying the Purchase Option, such number of Ordinary
Shares
or other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of the Purchase
Options and payment of the Exercise Price therefor, all Ordinary
Shares
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights
of
any stockholder. The Company further covenants and agrees that upon exercise
of
the Warrants underlying the Purchase Options and payment of the respective
Warrant exercise price therefor, all Ordinary
Shares
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights
of
any stockholder. As long as the Purchase Options shall be outstanding, the
Company shall use its best efforts to cause all (i) Units and Ordinary
Shares
issuable upon exercise of the Purchase Options, (ii) Warrants issuable upon
exercise of the Purchase Options and (iii)Ordinary
Shares
issuable upon exercise of the Warrants included in the Units issuable upon
exercise of the Purchase Option to be listed (subject to official notice
of
issuance) on all securities exchanges (or, if applicable on the Nasdaq Global
Select Market, Nasdaq Global Market, Nasdaq Capital Market, OTC Bulletin
Board
or any successor trading market) on which the Units, the Ordinary
Shares
or the Warrants may then be listed and/or quoted.
8.1
Holder's Right to Receive Notice. Nothing herein shall be construed as
conferring upon the Holders the right to vote or consent as a stockholder
for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior
to
the expiration of the Purchase Options and their exercise, any of the events
described in Section 8.2 shall occur, then, in one or more of said events,
the
Company shall give written notice of such event at least fifteen days prior
to
the date fixed as a record date or the date of closing the transfer books
for
the determination of the stockholders entitled to such dividend, distribution,
conversion or exchange of securities or subscription
rights,
or entitled to vote on such proposed dissolution, liquidation, winding up
or
sale. Such notice shall specify such record date or the date of the closing
of
the transfer books, as the case may be. Notwithstanding the foregoing, the
Company shall deliver to each Holder a copy of each notice given to the other
stockholders of the Company at the same time and in the same manner that
such
notice is given to the stockholders.
8.2
Events Requiring Notice. The Company shall be required to give the notice
described in this Section 8 upon one or more of the following events: (i)
if the
Company shall take a record of the holders of its Ordinary
Shares
for the purpose of entitling them to receive a dividend or distribution,
or (ii)
the Company shall offer to all the holders of its Ordinary
Shares
any additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any option,
right or warrant to subscribe therefor, or (iii) a dissolution, liquidation
or
winding up of the Company (other than in connection with a consolidation
or
merger) or a sale of all or substantially all of its property, assets and
business or a merger of the Company wherein the separate existence of the
Company shall cease shall be proposed.
8.3
Notice of Change in Exercise Price. The Company shall, promptly after an
event
requiring a change in the Exercise Price pursuant to Section 6 hereof, send
notice to the Holders of such event and change (a "Price Notice"). The Price
Notice shall describe the event causing the change and the method of calculating
same and shall be certified as being true and accurate by the Company's
President and Chief Financial Officer.
8.4
Transmittal of Notices. All notices, requests, consents and other communications
under this Purchase Option shall be in writing and shall be deemed to have
been
duly made when hand delivered, mailed by express mail or private courier
service, or sent by facsimile transmission, with confirmation of receipt:
(i) If
to the registered Holder of the Purchase Option, to the address and/or fax
number of such Holder as shown on the books of the Company, or (ii) if to
the
Company, to the following address or fax number or to such other address
or and
fax number as the Company may designate by notice to the
Holders:
P.O.
Box 309GT, Xxxxxx House
South
Church Street
Xxxxxx
Town, Grand Cayman
Cayman
Islands
9.
Miscellaneous.
9.1
Amendments. The Company and Maxim may from time to time supplement or amend
this
Purchase Option without the approval of any of the Holders in order to cure
any
ambiguity, to correct or supplement any provision contained herein that may
be
defective or inconsistent with any other provisions herein, or to make any
other
provisions in regard to matters or questions arising hereunder that the Company
and Maxim may deem necessary or desirable and that the Company and Xxxxx
xxxx
shall not adversely affect the interest of the Holders. All other modifications
or amendments shall require the written consent of and be signed by the party
against whom enforcement of the modification or amendment is
sought.
9.2
Headings. The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Purchase
Option.
10.
Entire Agreement. This Purchase Option (together with the other agreements
and
documents being delivered pursuant to or in connection with this Purchase
Option) constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
10.1
Binding Effect. This Purchase Option shall inure solely to the benefit of
and
shall be binding upon, the Holder and the Company and their permitted assignees,
respective successors, legal representative and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or
claim
under or in respect of or by virtue of this Purchase Option or any provisions
herein contained.
10.2
Governing Law; Submission to Jurisdiction. This Purchase Option 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. Each of the Company
and
Maxim, or any other Holder of this Purchase Option, agree that any action,
proceeding or claim against it arising out of, or relating in any way to
this
Purchase Option shall be brought and enforced in the courts of the State
of New
York located in New York County or of the United States of America for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the Company and Maxim, or
any
other Holder of this Purchase Option, hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenient forum.
Any
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 8 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the
Company in any action, proceeding or claim. The Company and the Holder agree
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attorneys' fees and expenses
relating to such action or proceeding and/or incurred in connection with
the
preparation therefor.
10.4
Execution in Counterparts. This Purchase Option may be executed in one or
more
counterparts, and by the different parties hereto in separate counterparts,
each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when
one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto.
10.5
Exchange Agreement. As a condition of the Holder's receipt and acceptance
of
this Purchase Option, Xxxxxx agrees that, at any time prior to the complete
exercise of this Purchase Option by Holder, if the Company and Maxim enter
into
an agreement (an "Exchange Agreement") pursuant to which they agree that
all
outstanding Purchase Options will be exchanged for securities or cash or
a
combination of both, then Holder shall agree to such exchange and become
a party
to the Exchange Agreement.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed
by its
duly authorized officer as of the 16th
day of January, 2008.
| ASIA SPECIAL SITUATION ACQUISITION CORP. | ||
| |
|
|
| By: | /s/ Xxxxxx Xx | |
|
Name: Xxxxxx Xx |
||
| Title: Chief Executive Officer | ||
Form
to be used to exercise Purchase Option
Date:_________________,
200__
The
undersigned hereby elects irrevocably to exercise all or a portion of the
within
Purchase Option and to purchase ____ Units of Asia Special Situation Acquisition
Corp. and hereby makes payment of $____________ (at the rate of $_________
per
Unit) in payment of the Exercise Price pursuant thereto. Please issue the
Ordinary
Shares
and Warrants as to which this Purchase Option is exercised in accordance
with
the instructions given below.
or
The
undersigned hereby elects irrevocably to convert its right to purchase _________
Units purchasable under the within Purchase Option by surrender of the
unexercised portion of the attached Purchase Option (with a "Value" based
of
$_______ based on a "Market Price" of $_______). Please issue the securities
comprising the Units as to which this Purchase Option is exercised in accordance
with the instructions given below.
|
Signature
|
||
|
Signature
Guaranteed
|
||
|
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
|
||
|
Name
|
||
|
(Print
in Block Letters)
|
||
|
Address
|
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON
THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION
OR
ENLARGEMENT
OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN
A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP
ON
A
REGISTERED
NATIONAL SECURITIES EXCHANGE.
Form
to be used to assign Purchase Option
ASSIGNMENT
(To
be executed by the registered Holder to effect a transfer of the within
Purchase
Option):
FOR
VALUE RECEIVED,___________________________________________ does hereby
sell,
assign and transfer unto______________________________________ the right
to
purchase __________ Units of Asia Special Situation Acquisition Corp.
(the
"Company") evidenced by the within Purchase Option and does hereby authorize
the
Company to transfer such right on the books of the Company.
Dated:___________________,
200__
|
Signature
|
||
|
Signature
Guaranteed
|
||
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON
THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION
OR
ENLARGEMENT
OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN
A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP
ON
A
REGISTERED
NATIONAL SECURITIES EXCHANGE.
