INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.5
This
Agreement is made as of ____, 2007, by and between China Resources Ltd. (the
“Company”) and American Stock Transfer & Trust Company (the
“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, No. 333-145901 (the
“Registration Statement”), for its 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,
Maxim Group LLC (“Maxim” or the
“Representative”) is acting as the representative of
the
underwriters in the IPO (the “Underwriters”);
WHEREAS,
the Company has agreed to sell an aggregate of 2,600,000 warrants to purchase
2,600,000 shares of the Company’s common stock, par value $.0001 per share, for
a purchase price of $1.00 per warrant in a private placement that will occur
no
less than two days prior to the effective date of the IPO (the
“Placement”);
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, an aggregate of $39,200,000 ($44,780,000 if
the
Underwriters’ over-allotment option is exercised in full), which is comprised of
(i) the net proceeds of the IPO (except as provided in the Registration
Statement); (ii) the $2,600,000 received by the Company in exchange for its
securities pursuant to the Placement; and (iii) an additional $800,000
($920,000, if the Underwriters’ over-allotment option is exercised in full) of
the proceeds of the IPO, representing the deferred portion of the underwriting
compensation referred to in the Registration Statement (the “Contingent
Discount”) which the Representative has agreed to deposit in the Trust
Account (as defined below), will be delivered to the Trustee to be deposited
and
held in the Trust Account for the benefit of the Company, and the holders
of the
Company’s common stock, par value $.0001 per share (the “Common
Stock”), included in the units (the “IPO Shares”) of
the Company’s securities issued in the IPO (the “Units”) and
the Representative and, in the event the securities offered in the IPO are
registered in Colorado, pursuant to Section 11-51-302(6) of the Colorado
Revised
Statutes (the “CRS”), a copy of which is attached hereto and
made a part hereof. The amount to be delivered to the Trustee and all
interest or dividend income received with respect thereto will be referred
to
herein as the “Property,” the stockholders for whose benefit
the Trustee shall hold the Property will be referred to as the “Public
Stockholders,” and the Public Stockholders, the Representative 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;
and
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
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, including, without limitation, with respect to the Public
Stockholders, the terms of Section 11-51-302(6) of the CRS, in a segregated
trust account established by the Trustee at a branch of Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx & Xxxxx Incorporated. and in a segregated account at a brokerage
institution selected by the Trustee (collectively, the “Trust
Account”);
(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 “government securities,” within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the “1940
Act”), having a maturity of 180 days or less or in any open ended
investment company registered under the 1940 Act selected by the Company
that
holds itself out as a money market fund meeting the conditions of paragraphs
(c)(2), (c)(3) and (c)(4) under Rule 2a-7 promulgated under the 1940 Act
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
within two business days the Company of all communications received by it
with
respect to any Property requiring action by the Company;
(f) supply
any necessary information or documents as may be requested by the Company
in
connection with the Company’s preparation of the tax returns for the Trust
Account or the Company;
(g) participate
in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company and/or
the
Representative to do so;
(h) render
to
the Company and to the Representative, and to such other persons 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;
and
(i) commence
liquidation of the Trust Account upon receipt of the Officers’ Certificate
signed by the Chief Executive Officer and Chief Financial Officer in accordance
with the terms of a letter (the “Termination Letter”), in a
form substantially similar to that attached hereto as Exhibit A or
Exhibit B, signed on behalf of the Company by its Chief Executive Officer
and Chief Financial 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 as part of
the
Company’s plan of dissolution and liquidation approved by the Company’s
stockholders. The Trustee understands and agrees that, except as provided
in
Section 1(j) and Section 2 hereof, disbursements from the Trust Account shall
be
made only pursuant to a duly executed Termination Letter, together with the
other documents referenced herein, including, without limitation, an
independently certified oath and report of inspector of election in respect
of
the stock vote in favor of the Business Combination (as hereinafter defined).
In
all cases, the Company shall provide the Representative with a copy of any
Termination Letter, Officers’ Certificates and/or any other correspondence that
it issues with respect to any proposed withdrawal from the Trust Account
promptly after it issues same. As used in this Agreement, the term
“Business Combination” shall have the same meaning as set forth
in the Registration Statement; and
2
(j) as
of the
date 18 months from the date of this Agreement (the “LOI Termination
Date”) (or 24 months from the date hereof, in the event the Company has
executed a Letter of Intent (defined below) prior to the LOI Termination
Date
but failed to consummate a Business Combination (“Second Termination
Date”)), commence liquidation of the Trust Account. The Trustee, upon
consultation with the Company and the Representative, shall deliver a notice
to
Public Stockholders of record as of the LOI Termination Date or Second
Termination Date, whichever the case may be, by U.S. mail or via the Depository
Trust Company (“DTC”), within five days of the LOI Termination
Date or Second Termination Date, to notify the Public Stockholders of such
event
and take such other actions as it may deem necessary to inform the
Beneficiaries. Following the requisite approval of the Company’s
stockholders, the Trustee shall deliver to each Public Stockholder its ratable
share of the Property against satisfactory evidence of delivery of the stock
certificates by the Public Stockholders to the Company through DTC, its Deposit
Withdraw At Custodian (DWAC) system or as otherwise presented to the Trustee.
Notwithstanding the foregoing, if the Trustee receives a bona fide, executed
letter of intent, agreement in principle or engagement letter (a “Letter
of Intent”) for a Business Combination prior to the LOI Termination
Date accompanied by an Officers’ Certificate as described in Section 3(e)
hereof, then the Trustee shall forego or suspend any liquidation of the Trust
Account until the earlier of a Business Combination or the Second Termination
Date.
2. Limited
Distributions of Income on Property.
(a) If
there
is any income tax obligation relating to the income from the Property in
the
Trust Account, then, at the written instruction of the Company, the Trustee
shall disburse to the Company by wire transfer, out of the Property in the
Trust
Account, the amount indicated by the Company as required to pay
income and franchise taxes.
Upon
one
or more written requests from the Company, the Trustee shall distribute to
the
Company interest or dividends earned on the Property in the Trust Account,
net
of taxes payable, up to a maximum of $1,000,000; provided; however, that in
the event
the over-allotment option is exercised in full, the Company shall be prohibited
from receiving distributions of income earned on the amount deposited in
the
Trust Account until after the first $300,000 of income is earned on the amount
deposited in the Trust Account (net of taxes payable), which amount shall
be
added to the amount deposited in the Trust Account resulting in an amount
of
$10.00 for each share represented by certificates held by Public
Stockholders.
(b) The
distributions requested by the Company may be for any amount, provided that
(i)
in the aggregate, all distributions under this Section 2(b) may not exceed
$1,000,000, and (ii) such distributions may only be made if and to the extent
that income has been earned and collected on the amount initially deposited
into
the Trust Account.
3
(c) Upon
receipt by the Trustee of a written instruction from the Company for
distributions from the Trust Account in connection with a plan of dissolution
and distribution, accompanied by an Officers’ Certificate signed by the Chief
Executive Officer and Chief Financial Officer of the Company certifying as
true,
accurate and complete (i) a statement of the amount of actual expenses incurred
or, where known with reasonable certainty, imminently to be incurred by the
Company in connection with its dissolution and distribution, including any
fees
and expenses incurred or imminently to be incurred by the Company in connection
with seeking stockholder approval of the Company’s plan of dissolution and
distribution, (ii) any amounts due to pay creditors or required to reserve
for
payment to creditors, and (iii) the sum of (i) and (ii), the Trustee shall
distribute to the Company an amount, as directed by the Company in the
instruction letter, up to the sum of (i) and (ii) as indicated in the
instruction letter.
(d) Except
as
provided in Sections 1(i), 1(j), 2(a), 2(b), and 2(c) above, no other
distributions from the Trust Account shall be permitted.
(e) It
is
acknowledged and agreed by the parties hereto that with respect to all requests
for distributions to or on behalf of the Company pursuant to this Section
2,
paragraphs (a), (b) and (c), the Trustee’s only responsibility is to follow the
instructions of the Company.
3. Agreements
and Covenants of the Company. The Company hereby agrees and
covenants:
(a) to
provide all instructions to the Trustee hereunder in writing, signed by the
Company’s Chief Executive Officer and Chief Financial Officer, with a copy to
the Representative. In addition, except with respect to its duties
under paragraph 1(i) and 1(j) above, the Trustee shall be entitled to rely
on,
and shall be protected in relying on, any verbal or telephonic advice or
instruction which it, in good faith, believes to be given by any one of the
persons authorized above to give written instructions, provided that the
Company
and/or the Representative shall promptly confirm such instructions in
writing;
(b) to
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. The Company may participate in such action with
its own counsel;
(c) to
pay
the Trustee the fees set forth on Schedule A annexed hereto. The
Company shall not be responsible for any other fees or charges of the Trustee,
except as may be provided in Section 3(b) hereof (it being expressly understood
that the Property shall not be used to make any payments to the Trustee under
such section);
4
(d) that,
in
the event that the Company completes a Business Combination and the Trust
Account is liquidated in accordance with Section 1(i) hereof, the Trustee
or
another independent party designated by the Representative shall act as the
inspector of election to certify the results of the stockholder
vote;
(e) that
the
Officers' Certificate referenced in Sections 1(i) and (j) hereof shall require
the Chief Executive Officer and Chief Financial Officer of the Company to
each
certify the following (wherever applicable): (1) prior to the LOI Termination
Date, the Company has entered into a bona fide Letter of Intent with a target
business; and/or (2) prior to the LOI Termination Date, the Company has entered
into a Business Combination with a target business, the terms of which are
consistent with the requirements set forth in the Registration Statement;
and/or
(3) prior to the Second Termination Date, the Company has entered into a
Business Combination with a target business, the terms of which are consistent
with the requirements set forth in the Registration Statement; and (4) the
Board
of Directors (the “Board”), has approved (where applicable):
(i) the Business Combination; and/or (ii) the Letter of Intent;
(f) in
connection with any vote of the Company's stockholders regarding a Business
Combination, to provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and tabulating
stockholder votes (which firm may be the Trustee) verifying the vote of the
Company's stockholders regarding such Business Combination;
(g) in
connection with any vote of the Company's stockholders regarding a dissolution
and liquidation, to provide to the Trustee an affidavit or certificate of
a firm
regularly engaged in the business of tabulating stockholder votes (which
firm
may be the Trustee) verifying the vote of the Company's stockholders regarding
such dissolution and liquidation; and
(h) within
five business days after the Underwriters’ over-allotment option (or any
unexercised portion thereof) expires or is exercised in full, to provide
the
Trustee notice in writing (with a copy to the Representative) of the total
amount of the Contingent Discount, which shall in no event be less than $800,000
less any amounts returned to stockholders of the Company who have elected
to
convert their shares into a cash payment per share of $10.00 from the Trust
Account in connection with a Business Combination, plus accrued
interest.
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 Section 1
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 written instructions
from the Company given as provided herein to do so and the Company shall
have
advanced or guaranteed to it funds sufficient to pay any expenses incident
thereto;
(c) change
the investment of any Property, other than in compliance with Section
1(c);
5
(d) refund
any depreciation in principal of any Property;
(e) assume
that the authority of any person designated by the Company and/or the
Representative to give written instructions hereunder shall not be continuing
unless provided otherwise in such designation, or unless the Company and/or
the
Representative 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 on, 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, unless an officer
of the Trustee has actual knowledge thereof, written notice of such event
is
sent to the Trustee or as otherwise required under Section 1(i) hereof;
and
(h) pay
any
taxes on behalf of the Trust Account (it being expressly understood that
the
Trustee’s sole obligation with respect to taxes shall be to disburse funds to
the Company with respect thereto as provided for by Section 2(a)
hereof).
5. Certain
Rights Of Trustee.
(a) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or opinion of counsel or both. The Trustee shall not be liable
for
any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or opinion of counsel. The Trustee may consult with counsel and
the
advice of such counsel or any opinion of counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(b) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(c) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Agreement.
6
(d) The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Agreement, and it shall not be accountable for
the
Company’s use of the proceeds from the Trust Account. Notwithstanding the
effective date of this Agreement or anything to the contrary contained in
this
Agreement, the Trustee shall have no liability or responsibility for any
act or
event relating to this Agreement or the transactions related thereto which
occurs prior to the date of this Agreement, and shall have no contractual
obligations to the Beneficiaries until the date of this Agreement.
6. No
Right of Set-Off. The Trustee waives any right of set-off or any
right, title, interest or claim of any kind that the Trustee may have against
the Property held in the Trust Account. In the event that the Trustee has
a
claim against the Company under this Agreement, including, without limitation,
under Section 3(b), the Trustee will pursue such claim solely against the
Company and not against the Property held in the Trust Account.
7. Termination. This
Agreement shall terminate as follows:
(a) if
the
Trustee gives written notice to the Company that it desires to resign under
this
Agreement, the Company shall use its reasonable efforts to locate a successor
trustee during which time the Trustee shall continue to act in accordance
with
the terms of this Agreement. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed
to
become subject to the terms of this Agreement, the Trustee shall transfer
the
management of the Trust Account to the successor trustee, including, but
not
limited, 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 the Company does not locate a successor trustee within
90
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;
(b) at
such
time that the Trustee has completed the liquidation of the Trust Account
in
accordance with the provisions of Section 1(i) hereof, and distributed the
Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate except with respect to Section 3(b) hereof;
or
(c) on
such
date after ______, 2009 (or ______, 2009, in the event that the Company has
executed a Letter of Intent prior to the Second Termination Date) when the
Trustee deposits the Property with the United States District Court for the
Southern District of New York in the event that, prior to such date, the
Trustee
has not received a Termination Letter from the Company pursuant to Section
1(i)
or (j) hereof.
8. 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. Upon receipt of written instructions, the Trustee will confirm
such instructions with an “Authorized Individual” at an “Authorized Telephone
Number” listed on the attached Exhibit C. 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 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.
7
(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 one instrument. Facsimile signatures
shall constitute original signatures for all purposes of this
Agreement.
(c) This
Agreement contains the entire agreement and understanding of the parties
hereto
with respect to the subject matter hereof. This Agreement or any provision
hereof may only be changed, amended or modified by a writing signed by each
of
the parties hereto; provided, however, that no such change, amendment or
modification (other than to correct a typographical error or similar technical
error) may be made to Sections 1(i), 1(j), 2(a), 2(b) or 2(c) hereof without
the
consent the Public Stockholders holding 95% of the Company’s issued and
outstanding Common Stock, it being the specific intention of the parties
hereto
that each Public Stockholder is and shall be a third-party beneficiary of
this
Section 8(c) with the same right and power to enforce this Section 8(c),
the
“consent of the Public Stockholders holding 95% of the Company’s issued and
outstanding Common Stock” shall mean receipt by the Trustee of a certificate
from an entity certifying that (i) such entity regularly engages in the business
of serving as inspector of elections for companies whose securities are publicly
traded, and (ii) either (a) Public Stockholders of record holding 95% of
the
Company’s issued and outstanding Common Stock as of a record date established in
accordance with Section 213(a) of the Delaware General Corporation Law, as
amended (the “DGCL”), have voted in favor of such amendment or
modification, or (b) Public Stockholders of record holding 95% of the Company’s
issued and outstanding Common Stock as of a record date established in
accordance with Section 213(b) of the DGCL has delivered to such entity a
signed
writing approving such amendment or modification. The Representative, who,
along
with the other Underwriters, the parties specifically agree, are and shall
be
third party beneficiaries for purposes of this Agreement; and provided further,
any amendment to Section 1(j) shall require the consent of all of the Public
Stockholders. 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 State and County of New York for purposes of resolving
any
disputes hereunder. The parties hereto irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive, and hereby waive any objection to
such
exclusive jurisdiction and that such courts represent an inconvenient
forum.
(e) Any
notice, consent or request to be given in connection with any of the terms
or
provisions of this Agreement shall be in writing and shall be sent by express
mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
8
if
to the
Trustee, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice
President
Fax
No.:
(000) 000-0000
if
to the
Company, to:
Xxxx
Xxxx
China Xxx Xxx Trading Co., Ltd., Xxxx 000, Xxxxx X, Xxxxxx Xxxxxxx Xxxxx,
Xxxxxxx Xxxx
Futian
District, Shenzhen, P.R. China
Attn:
Chief Executive Officer
Fax
No
00- 000-00000000
in
either
case with a copy to:
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx, Director of Investment Banking
Fax
No.:
(000) 000-0000
and
Xxxxx
& XxxXxxxxx LLP
Three
Park Avenue, 16th floor
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx XxXxxx Esq.
Fax
No.:
(000) 000-0000
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
(f) This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representative.
9
(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.
(Remainder
of document intentionally left blank. Signature page to
follow.)
10
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
| AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee | |||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
| CHINA RESOURCES LTD. | |||
|
|
By:
|
/s/ | |
| Name: Xxxx Xxxx | |||
| Title: Chief Executive Officer | |||
11
SCHEDULE
A
Schedule
of fees pursuant to Section
3(c) of Investment Management Trust Agreement
between
China Resources Ltd..
and
American
Stock Transfer & Trust
Company
|
Fee
Item
|
Amount
|
|
|
For
acting as
trustee
|
$3,000
|
12
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
|
|
Re:
|
Trust
Account No. _________ / Brokerage Account No. [
]
Termination
Letter
|
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between China
Resources Ltd.. (the “Company”) and American Stock Transfer
& Trust Company (the “Trustee”), dated as of _____, 2007
(the “Trust Agreement”), this is to advise you that the Company
has entered into an agreement (the “Business Agreement”) with
[___________] (“Target Business”) to complete a business
combination with Target Business (the “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
(the
“Consummation Date”) and shall provide you with an Officers’
Certificate in accordance with Sections 1(i) and 2(c) of
the Trust Agreement.
Capitalized terms used herein and not otherwise define shall have the meaning
ascribed to them in the Trust Agreement.
In
accordance with paragraph B of Article FIFTH of the Certificate of Incorporation
of the Company, as amended, the Business Combination has been approved by
the
stockholders of the Company and by the Public Stockholders holding a majority
of
the IPO Shares, and Public Stockholders holding less than 35% of the IPO
Shares
have voted against the Business Combination and given notice of exercise
of
their conversion rights described in paragraph C of Article FIFTH of the
Certificate of Incorporation of the Company, as amended. Pursuant to
Section 3(f) of the Trust Agreement, we are providing you with [ an affidavit
]
[ a certificate ] of ___________, which verifies the vote of the Company’s
stockholders in connection with the Business Combination.
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 and the
Representative shall direct in writing on the Consummation Date.
13
On
the
Consummation Date, (i) counsel for the Company shall deliver to you written
notification that (a) all of the conditions to closing of the Business
Combination have been satisfied and the closing date for such Business
Combination has been scheduled pursuant to the terms of the Business Agreement,
and (b) the provisions of Section 11-51-302(6) and Rule 51-3.4 of the CRS
have
been met, to the extent applicable; (ii) the Company shall deliver along
with
the oath and report of inspector of election certified by an independent
inspector which may be the Trustee or as otherwise appointed by the
Representative (collectively, the “Report”); and (iii) the
Company and the Representative shall deliver to you joint written instructions
with respect to the transfer of the funds, including the Contingent Discount,
held in the Trust Account (“Instructions”). You are hereby
directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the counsel’s letter, the Report, evidence of
delivery of the Stock Certificates, the Officers’ Certificate and the
Instructions in accordance with the terms of the
Instructions. Notwithstanding the foregoing, upon verification of the
receipt by you of the Instructions, we hereby agree and acknowledge that
the
Property in the Trust Account shall be distributed as follows: (1) to the
Representative, by wire transfer (or as otherwise directed by the
Representative) in immediately available funds, the aggregate amount of $800,000
($920,000 if the Underwriters’ over-allotment option has been exercised in
full), plus interest accrued thereon; and (2) thereafter, to any other
beneficiary in accordance with the terms of the Instructions. 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 and the
Representative of the same and, if the amount set forth in sub-clause (1)
shall
not have been paid in full, the Representative and the Company shall issue
joint
written instructions directing you as to whether such funds should remain
in the
Trust Account and be distributed after the Consummation Date to the Company
and/or the Representative. Upon the distribution of all the funds in the
Trust
Account pursuant to the terms hereof, the Trust Agreement shall be
terminated.
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before
the
original Consummation Date of a new Consummation Date, then upon the receipt
of
written instructions, 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, Chief Executive Officer
By:
___________________________________
Xxxxxx
Nugawela, Chief Financial Officer
14
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
|
|
Re:
|
Trust
Account No. ____ /
Brokerage Account No. [ ]
Termination
Letter
|
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between China
Resources Ltd. (the “Company’) and American Stock Transfer
& Trust Company (the ‘Trustee”), dated as of _____, 2007
(the ‘Trust Agreement”), this is to advise you that the Board
of Directors and stockholders of the Company have voted to dissolve the Company
and liquidate the Trust Account (as defined in the Trust Agreement). Attached
hereto is a copy of the minutes of the meeting of the Board of Directors
of the
Company relating thereto, certified by the Secretary of the Company as true
and
correct and in full force and effect.
In
accordance with the terms of the Trust Agreement, we hereby (a) certify to
you
that the provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado
Revised Statutes have been met, and (b) authorize you to commence liquidation
of
the Trust Account as a 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 ten (10) days of the liquidation date, or as
soon as
thereafter as is practicable. You will notify the Company and the paying
agent
appointed by the Company _______________ (“Designated Paying
Agent”) in writing as to when all of the funds in the Trust Account
will be available for immediate transfer ("Transfer Date”). The
Designated Paying Agent shall thereafter notify you as to the account or
accounts of the Designated Paying Agent that the funds in the Trust Account
should be transferred to on the Transfer Date so that the Designated Paying
Agent may commence distribution of such funds in accordance with terms of
the
Trust Agreement and the Company’s Certificate of Incorporation, as
amended. Upon the payment of all the funds in the Trust Account, the Trust
Agreement shall be terminated and the Trust Account closed.
Very
truly yours,
By:
___________________________________
Xxxx
Xxxx, Chief Executive
Officer
By:
___________________________________
Xxxxxx
Nugawela, Chief Financial
Officer
15
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
|
|
|
|
|
Company:
|
|
|
|
|
|
Xxxx
Xxxx China Xxx Xxx Trading Co., Ltd., Room 921, Block A, Golden
Central
Tower, Jintian Road, Futian District, Shenzhen, P.R.
China
Attn:
Xxxx Xxxx, Chief Executive Officer
|
|
|
|
|
|
Trustee:
|
|
|
|
|
|
American
Stock Transfer & Trust Company
00
Xxxxxx Xxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
|
|
|
Underwriters:
|
|
|
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx, Director of Investment Banking
|
16
