INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of
___________, 2009 by and between GSME Acquisition Partners I (the “Company”) its
principal office located at 000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, XXX 000000 and
Continental Stock Transfer & Trust Company (“Trustee”) located at 00 Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Company’s registration
statement on Form F-1, No. 333-______ (“Registration Statement”), for its
initial public offering of securities (“IPO”) has been declared effective as of
the date hereof (“Effective Date”) by the Securities and Exchange Commission
(capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Registration Statement); and
WHEREAS, Xxxxx & Company
Securities, LLC (“Xxxxx & Company”) is acting as the representative of the
underwriters in the IPO; and
WHEREAS, as described in the
Registration Statement, and in accordance with the Company’s Amended and
Restated Memorandum and Articles of Association, $36,000,000 of the gross
proceeds of the IPO and sale of the Insider Warrants (as defined in the
Registration Statement) ($41,400,000 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 $.001 per share, issued in the IPO as
hereinafter provided (the amount to be delivered to the Trustee will be referred
to herein as the “Property”; the shareholders for whose benefit the Trustee
shall hold the Property will be referred to as the “Public Shareholders,” and
the Public Shareholders and the Company will be referred to together 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;
IT IS AGREED:
1. Agreements 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
(“Trust Account”) established by the Trustee at X. X. Xxxxxx Xxxxx Bank N.A. and
at an office of ___________ selected by the Company;
(b)
Manage, supervise and administer the Trust Account subject to the
terms and conditions set forth herein;
1
(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,
and/or in any open ended investment company registered under the Investment
Company Act of 1940 that holds itself out as a money market fund selected by the
Company meeting the conditions of paragraphs (c)(2), (c)(3) and (c)(4) of Rule
2a-7 promulgated under the Investment Company Act of 1940, as determined by the
Company;
(d)
Collect and receive,
when due, all principal and income arising from the Property, which shall become
part of the “Property,” as such term is used herein;
(e)
Notify the Company of all
communications received by it with respect to any Property requiring action by
the Company;
(f)
Supply any necessary information or
documents as may be requested by the Company in connection with the Company’s
preparation of its tax returns;
(g)
Participate in any plan or proceeding for
protecting or enforcing any right or interest arising from the Property if, as
and when instructed by the Company to do so; and
(h)
Commence liquidation of the Trust Account only after and
promptly after receipt of, and only in accordance with, the terms of a letter
(“Termination Letter”), in a form substantially similar to that attached hereto
as either Exhibit A or Exhibit B hereto, signed on behalf of the Company by its
Chief Executive Officer, President or Chairman of the Board and Secretary or
Assistant Secretary, 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
12-month anniversary of the closing (“Closing”) of the IPO (“First Date”), or
the 18-month anniversary of the Closing (“Last Date”) in the event that a letter
of intent, memorandum of understanding or definitive agreement for a
Business Combination has been executed on or prior to the First Date but the
Business Combination has not been consummated by the First 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
shareholders of record on the Last Date. The provisions of this
Section 1(h) may not be modified, amended or deleted under any
circumstances.
2. Limited Distributions of
Income from Trust Account.
2
(a)
Upon written request from the Company, which may be given from time to
time in a form substantially similar to that attached hereto as Exhibit C, the
Trustee shall distribute to the Company the amount requested by the Company to
cover any income tax obligation owed by the Company;
(b)
Upon written request from the Company, which may be
given from time to time in a form substantially similar to that attached hereto
as Exhibit D, the Trustee shall distribute to the Company the amount requested
by the Company to cover expenses related to investigating and selecting a target
business and other working capital requirements; provided, however, that the
Company will not be allowed to withdraw interest income earned on the trust
account unless there is sufficient funds available to pay the Company’s tax
obligations on such interest income or otherwise then due at that time;
and
(c)
The limited distributions referred to in Sections 2(a) and 2(b) above
shall be made only from income collected on the Property. Except as
provided in Section 2(a) and 2(b) above, no other distributions from the Trust
Account shall be permitted except in accordance with Section 1(h)
hereof.
(d)
In all cases, the Company shall provide Xxxxx
& Company with a copy of any Termination Letters and/or any other
correspondence that it issues to the Trustee with respect to any proposed
withdrawal from the Trust Account promptly after such issuance.
3. 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 Chairman of the Board or Chief Executive Officer. In
addition, except with respect to its duties under paragraphs 1(h), 2(a) and 2(b)
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;
3
(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
Trustee may not agree to settle any Indemnified Claim without the prior written
consent of the Company, which consent shall not be unreasonably
withheld. The Company may participate in such action with its own
counsel;
(c)
Pay the Trustee an initial acceptance
fee, an annual fee and a transaction processing fee for each disbursement made
pursuant to Sections 2(a) and 2(b) as set forth on Schedule A hereto, which fees
shall be subject to modification by the parties from time to time. It
is expressly understood that the Property shall not be used to pay such fees and
further agreed that said transaction processing fees shall be deducted by the
Trustee from the disbursements made to the Company pursuant to Section
2(b). The Company shall pay the Trustee the initial acceptance fee
and first year’s fee at the consummation of the IPO and thereafter on the
anniversary of the Effective Date;
(d)
In connection with any vote of the Company’s shareholders regarding
a Business Combination, provide to the Trustee an affidavit or certificate of a
firm regularly engaged in the business of soliciting proxies and/or tabulating
shareholder votes (which firm may be the Trustee) verifying the vote of the
Company’s shareholders regarding such Business Combination; and
(e)
In connection with the Trustee acting as Paying/Disbursing
Agent pursuant to Exhibit B, the Company will not give the Trustee disbursement
instructions which would be prohibited under this Agreement.
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 2 hereof and the Trustee
shall have no liability to any party except for liability arising out of its own
gross negligence or willful misconduct;
(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);
4
(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; and
(h)
File local, state and/or Federal tax returns
or information returns with any taxing authority on behalf of the Trust Account
and payee statements with the Company documenting the taxes, if any, payable by
the Company or the Trust Account, relating to the income earned on the
Property.
(i)
Pay any taxes on behalf of the Trust Account (it being
expressly understood that the Property shall not be used to pay any such taxes
and that such taxes, if any, shall be paid by the Company from funds not held in
the Trust Account).
(j)
Imply obligations, perform duties, inquire or otherwise be
subject to the provisions of any agreement or document other than this agreement
and that which is expressly set forth herein.
(j)
Verify calculations, qualify or otherwise approve Company
requests for distributions pursuant to Section 1(h), 2(a) or 2(b)
above.
5. Termination. This
Agreement shall terminate as follows:
5
(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 any court in the State of New York or with the United
States District Court for the Southern District of New York and upon such
deposit, the Trustee shall be immune from any liability whatsoever;
or
(b)
At such time that the Trustee has completed the
liquidation of the Trust Account in accordance with the provisions of paragraph
1(h) hereof, and distributed the Property in accordance with the provisions of
the Termination Letter, this Agreement shall terminate except with respect to
Paragraph 3(b).
5. Miscellaneous.
(a)
The Company and the Trustee each acknowledge that
the Trustee will follow the security procedures set forth below with respect to
funds transferred from the Trust Account. The Company and the Trustee
will each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other
party immediately if it has reason to believe unauthorized persons may have
obtained access to such information, or of any change in its authorized
personnel. In executing funds transfers, the Trustee will rely upon
all information supplied to it by the Company, including, account names, account
numbers, and all other identifying information relating to a beneficiary,
beneficiary’s bank or intermediary bank. The Trustee shall not be liable for any
loss, liability or expense resulting from any error in the information or
transmission of the wire.
(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 conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. It may
be executed in several original or facsimile 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 Section 1(h) (which may not be amended under any
circumstances), this Agreement or any provision hereof may only be changed,
amended or modified by a writing signed by each of the parties hereto; provided,
however, that no such change, amendment or modification may be made without the
prior written consent of Xxxxx & Company. As to any claim,
cross-claim or counterclaim in any way relating to this Agreement, each party
waives the right to trial by jury.
6
(d)
The parties hereto consent to the
jurisdiction and venue of any state or federal court located in the City of New
York, Borough of Manhattan, 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:
|
Continental
Stock Transfer
|
|
&
Trust Company
|
|
00
Xxxxxxx Xxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attn: Xxxxxx
X. Xxxxxx, Chairman, and Xxxxx X. XxXxxxx, CFO
|
|
Fax
No.: (000)
000-0000
|
if to the Company, to:
|
000
Xxxx Xxxxxxx Xxxx
|
|
Xxxxxxxx,
XXX 000000
|
|
Attn: Xxx
X. Xxxxx, Chief Executive Officer
|
|
Fax
No.: (___)
___-____
|
in either case with a copy
to:
|
Xxxxx
& Company Securities, LLC
|
|
000
Xxxx 00xx
Xxxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attn: ______________,
Chairman
|
|
Fax
No.: (___)
___-____
|
(f)
This Agreement may not be assigned by the Trustee
without the prior consent of the Company.
7
(g)
Each of the Trustee and the Company hereby represents that it has
the full right and power and has been duly authorized to enter into this
Agreement and to perform its respective obligations as contemplated
hereunder. The Trustee acknowledges and agrees that it shall not make
any claims or proceed against the Trust Account, including by way of set-off,
and shall not be entitled to any funds in the Trust Account under any
circumstance. In the event that the Trustee has a claim against the Company
under this Agreement, the Trustee will pursue such claim solely against the
Company and not against the Property held in the Trust Account.
(h)
Each of the Company and the Trustee hereby acknowledge
that Xxxxx & Company is a third party beneficiary of this
Agreement.
8
IN WITNESS WHEREOF, the parties have
duly executed this Investment Management Trust Agreement as of the date first
written above.
|
CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY,
as Trustee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
9
SCHEDULE
A
|
Fee Item
|
Time and method of payment
|
Amount
|
||||
|
Initial
acceptance fee
|
Initial
closing of IPO by wire transfer
|
$ | 1,000 | |||
|
Annual
fee
|
First
year, initial closing of IPO by wire transfer; thereafter on the
anniversary of the effective date of the IPO by wire transfer or
check
|
$ | 3,000 | |||
|
Transaction
processing fee for disbursements to Company under Section
2
|
Deduction
by Trustee from accumulated income following disbursement made to Company
under Section 2
|
$ | 250 | |||
10
EXHIBIT
A
[Letterhead
of Company]
[Insert date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No. - Termination
Letter
Gentlemen:
Pursuant to paragraph 1(h) of the
Investment Management Trust Agreement between GSME Acquisition Partners I
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of _________, 2009 (“Trust Agreement”), this is to advise you that the
Company has entered into an agreement (“Business Agreement”) with
__________________ (“Target Business”) to consummate a business combination with
Target Business (“Business Combination”) on or about [insert date]. The
Company shall notify you at least 48 hours in advance of the actual date of the
consummation of the Business Combination (“Consummation Date”).
In accordance with the terms of the
Trust Agreement, we hereby authorize you to commence liquidation of the Trust
Account to the effect that, on the Consummation Date, all of 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 stockholders in connection with the Business Combination and (b)
written instructions with respect to the transfer of the funds held in the Trust
Account (“Instruction Letter”). You are hereby directed and
authorized to transfer the funds held in the Trust Account immediately upon your
receipt of the counsel's letter and the Instruction Letter, in accordance with
the terms of the Instruction Letter. In the event that certain
deposits held in the Trust Account may not be liquidated by the Consummation
Date without penalty, you will notify the Company of the same and the Company
shall direct you as to whether such funds should remain in the Trust Account and
distributed after the Consummation Date to the Company. Upon the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
11
In the event that the Business
Combination is not consummated on the Consummation Date described in the notice
thereof and we have not notified you on or before the original Consummation Date
of a new Consummation Date, then upon receipt by the Trustee of written
instructions from the Company, the funds held in the Trust Account shall be
reinvested as provided in the Trust Agreement on the business day immediately
following the Consummation Date as set forth in the notice.
|
Very
truly yours,
|
||
|
By:
|
|
|
|
Xxxx
Xxxx Gao, Chairman of the Board
|
||
|
By:
|
|
|
|
Xxx
X. Xxxxx,
Secretary
|
||
cc: Xxxxx
& Company Securities, LLC
12
EXHIBIT
B
[Letterhead
of Company]
[Insert date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Re: Trust Account
No. - Termination
Letter
Gentlemen:
Pursuant to paragraph 1(h) of the
Investment Management Trust Agreement between GSME Acquisition Partners I
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of ________, 2009 (“Trust Agreement”), this is to advise you that the
Company has been unable to effect a Business Combination with a Target Company
within the time frame specified in the Company’s Memorandum and Articles of
Association, as described in the Company’s prospectus relating to its
IPO.
In accordance with the terms of the
Trust Agreement, we hereby authorize you, to commence liquidation of the Trust
Account as promptly as practicable to stockholders of record on the Last Date
(as defined in the Trust Agreement). You will notify the Company in
writing as to when all of the funds in the Trust Account will be available for
immediate transfer (“Transfer Date”) in accordance with the terms of the Trust
Agreement and the Memorandum and Articles of Association of the
Company. You shall commence distribution of such funds in accordance
with the terms of the Trust Agreement and the written instructions from the
Company attached hereto directing distribution of the funds held in the Trust
Account and you shall oversee the distribution of such funds. Upon
the distribution of all the funds in the Trust Account, your obligations under
the Trust Agreement shall be terminated.
|
Very
truly yours,
|
||
|
By:
|
||
|
Xxxx
Xxxx Gao, Chairman of the Board
|
||
|
By:
|
||
|
Xxx
X. Xxxxx,
Secretary
|
||
cc: Xxxxx
& Company Securities, LLC
13
EXHIBIT
C
[Letterhead
of Company]
[Insert date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No.
Gentlemen:
Pursuant to paragraph 2(a) of the
Investment Management Trust Agreement between GSME Acquisition Partners I
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of ___________, 2009 (“Trust Agreement”), the Company hereby requests
that you deliver to the Company $_______ of the income earned on the Property as
of the date hereof. The Company needs such funds to pay for the tax
obligations as set forth on the attached tax return or tax
statement. In accordance with the terms of the Trust Agreement, you
are hereby directed and authorized to transfer (via wire transfer) such funds
promptly upon your receipt of this letter to the Company’s operating account
at:
[WIRE
INSTRUCTION INFORMATION]
|
By:
|
||
|
Xxxx
Xxxx Gao, Chairman of the Board
|
||
|
By:
|
||
|
Xxx
X. Xxxxx,
Secretary
|
||
cc: Xxxxx
& Company Securities, LLC
14
EXHIBIT
D
[Letterhead
of Company]
[Insert date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
Re: Trust Account
No.
Gentlemen:
Pursuant to paragraph 2(b) of the
Investment Management Trust Agreement between GSME Acquisition Partners I
(“Company”) and Continental Stock Transfer & Trust Company (“Trustee”),
dated as of __________, 2009 (“Trust Agreement”), the Company hereby requests
that you deliver to the Company $_______ of the income earned on the Property as
of the date hereof, which does not exceed, in the aggregate with all such prior
disbursements pursuant to paragraph 2(b), if any, the maximum amount set forth
in paragraph 2(b). The Company needs such funds to cover its expenses
relating to investigating and selecting a target business and other working
capital requirements. In accordance with the terms of the Trust
Agreement, you are hereby directed and authorized to transfer (via wire
transfer) such funds promptly upon your receipt of this letter to the Company’s
operating account at:
[WIRE
INSTRUCTION INFORMATION]
|
Very
truly yours,
|
||
|
GSME
ACQUISITION PARTNERS I
|
||
|
By:
|
||
|
Xxxx
Xxxx Gao, Chairman of the Board
|
||
|
By:
|
||
|
Xxx
X. Xxxxx,
Secretary
|
||
cc: Xxxxx
& Company Securities, LLC
15
EXHIBIT
E
|
AUTHORIZED
INDIVIDUAL(S)
|
AUTHORIZED
|
|
FOR TELEPHONE CALL BACK
|
TELEPHONE
NUMBER(S)
|
Company:
|
GSME
Acquisition Partners I
|
|
|
000
Xxxx Xxxxxxx Xxxx
|
|
|
Xxxxxxxx,
XXX 000000
|
|
|
Attn: Xxxx
Xxxx Gao, Chairman
|
(00)
00-0000-0000
|
Trustee:
|
Continental
Stock Transfer
|
|
|
&
Trust Company
|
|
|
00
Xxxxxxx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attn: Xxxxxx
X. Xxxxxx, Chairman
|
(000)
000-0000
|
16
