INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.9
This
Agreement is made as of
___________________, 2008 by and between Xxxxxxxxx Asia Acquisition Corporation
(the “Company”) and Continental Stock Transfer & Trust Company
(“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, File No.
333-146147______________ (“Registration Statement”), for its initial public
offering (“IPO”) of units (the “Units”) of the Company, each Unit consisting of
one ordinary share, par value $0.001 per share (the “Ordinary Share”) and one
warrant to purchase one Ordinary Share (the “Warrant”), has been declared
effective as of the date hereof (the “Effective Date”) by the Securities and
Exchange Commission (the “Commission”); and
WHEREAS,
the Company has sold an aggregate of 750,000 warrants (the “Insider Warrants”)
in a private placement (the “Placement”) pursuant to Regulation D promulgated by
the Commission pursuant to the Securities Act of 1933, as amended (the “Act”)
for a purchase price of $750,000; and
WHEREAS,
Broadband Capital Management LLC (the “Representative”) is acting as the
representative of the several underwriters in the IPO; and
WHEREAS,
as described in the Company’s Registration Statement, and in accordance with the
Company’s Amended and Restated Articles of Association, $29,760,000 of the gross
proceeds of the IPO ($34,224,000 if the underwriters’ over-allotment option is
exercised in full) and $750,000 of the sale proceeds of the Insider Warrants
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
issued in the IPO (except as otherwise provided herein) and in the event the
Units are registered in Colorado, pursuant to Section 11-51-302(6) of the
Colorado Revised Statutes (the amount to be delivered to the Trustee 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,
pursuant to the Underwriting Agreement, dated as of
[ ], 2008, between the
Company and the Representative, a portion of the Property equal to $640,000
($736,000 if the underwriters’ over-allotment option is exercised in full) is
attributable to deferred underwriting compensation that will become payable
by
the Company to the Representative upon the consummation of a Business
Combination (as defined in the Registration Statement) (the “Deferred
Discount”); 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, including the terms of Section 11-51-302(6) of the Colorado Statute
in a segregated trust account (“Trust Account”) established by the Trustee at a
branch of [__________________] selected by the Trustee;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In
a
timely manner, upon the written instruction of the Company, to invest and
reinvest the Property in any “Government Security.” As used herein, Government
Security means any Treasury Xxxx issued by the United States, having a maturity
of one hundred and eighty days or less;
(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 and the Representative 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 person as the Company
may instruct, monthly written statements of the activities of and amounts in
the
Trust Account reflecting all receipts and disbursements of the Trust
Account;
(i) If
there
is any income or other tax obligation relating to the income from the Property
in the Trust Account, then, from time to time, at the written instruction of
the
Company, the Trustee shall promptly, to the extent there is not sufficient
cash
in the Trust Account to pay such tax obligation, liquidate such assets held
in
the Trust Account as shall be designated by the Company in writing;
(j) As
of the
date of the consummation of a business combination (“Business Combination”) or
the vote of the Company’s Board of Directors to liquidate and dissolve the
Company, commence liquidation of the Trust Account upon receipt of the Officers’
Certificate in accordance with the terms of a letter (“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 Chairman or 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. The Trustee understands
and
agrees that disbursements from the Trust Account shall be made only pursuant
to
a duly executed Termination Letter, together with the other documents referenced
herein. In all cases, the Trustee shall provide the Representative with a copy
of any Termination Letter and/or any other correspondence it delivers or
receives with respect to any proposed withdrawal from the tTrust Account
promptly after it has delivered or received same. The provisions of this Section
1(j) may not be modified, amended or deleted under any
circumstances;
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(k) In
accordance with the instructions contained in the Termination Letter, 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 the Letter
of Intent (defined below) prior to the LOI Termination Date but failed to
consummate a Business Combination (“Second Termination Date”), or 36 months from
the date hereof in the event the Company’s shareholders have voted to increase
the amount of time available to the Company to consummate a Business Combination
(“Third 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, Second Termination Date or Third 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, Second Termination Date or Third Termination Date,
as applicable, to notify the Public Stockholders of such event and take such
other actions as it may deem necessary to inform the Beneficiaries. 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 Agent
Commission (DWAC) system or as otherwise presented to the Trustee; provided,
however,
that
in the
event that a Termination Letter has not been received by the LOI Termination
Date,
the
Second Termination Date or the Third Termination Date, whichever the case may
be,
the
Trust Account shall be liquidated as part of the Company’s plan of dissolution
and distribution approved by the Company’s Public Stockholders in accordance
with the procedures set forth in the Termination Letter to the stockholders
of
record on the record date; provided,
further,
that
the record date shall be within ten (10) days of the LOI Termination
Date,
the
Second Termination Date or Third Termination Date, whichever the case may
be,
or as
soon thereafter as is practicable. Notwithstanding
the foregoing, (i) if the Trustee receives a bona fide, executed letter of
intent or engagement letter (the “Letter of Intent”) for a Business Combination
prior to the LOI Termination Date, accompanied by an Officers’ Certificate as
described in paragraph 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, and (ii) if, prior to the Second Termination Date,
the Trustee receives a certified copy of the results of a meeting of the
Company’s stockholders pursuant to which the Company’s stockholders extended the
time available to the Company to consummate a Business Combination to the Third
Termination Date, accompanied by an Officers’ Certificate as described in
paragraph 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 Third
Termination Date; and
(l) The
distribution, if any, of the Deferred Discount to the underwriters upon the
liquidation of the Trust Account as provided herein shall be made from the
Trust
Account through the Trustee (and not through the Company) in accordance with
a
written instruction of the Company and the Representative.
2. Limited
Distributions of Income on Property.
(a) If
there
is any income, franchise or other tax obligation owed by the Company, as
determined by the Company, then, from time to time, at the written instruction
of the Company, the Trustee shall promptly to the extent there is not sufficient
cash in the Trust Account to pay such tax obligation, liquidate such assets
held
in the Trust Account as shall be designated by the Company in writing,
and
disburse
to the Company by wire transfer, out of the Property in the Trust Account,
the
amount indicated
by the Company as owing in
respect of such income tax obligation.
3
(b) Upon
receipt by the Trustee from time to time of an executed Officer’s Certificate
containing certification that such distribution pursuant to this Section 2(b)
shall only be used to fund the working capital requirements of the Company
and
the costs related to identifying, researching and acquiring a prospective target
business, distribute one-half of the interest earned on the Trust Account (as
calculated by the Company), net of taxes payable, up to a maximum of $1,350,000,
the Trustee shall make a distribution of the amount specified in such
Certificate to the Company to fund working capital and general corporate
requirements as promptly as practicable after receipt of such Officer’s
Certificate .
(c) Except
as
provided in this Section 2, no other distributions from the Trust Account shall
be permitted except in accordance with Sections 1(i) and (j)
hereof.
3. Agreements
and Covenants of the Company. The Company hereby agrees and
covenants:
(a) To
give
all instructions to the Trustee hereunder in writing, signed by the Company’s
Chief Executive Officer or Chairman of the Board. In addition, except with
respect to its duties under paragraph 1(i) and (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,
however, that the Company shall promptly confirm such instructions in
writing;
(b) Subject
to the provisions of Section 5 hereof, to hold the Trustee harmless and
indemnify the Trustee from and against, any and all expenses, including
reasonable counsels’ 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 Company shall have the right to conduct and manage
the defense against such Indemnified Claim, provided, that the Company shall
obtain the consent of the Trustee with respect to the selection of counsel,
which consent shall not be unreasonably withheld. The Trustee may participate
in
such action with its own counsel;
(c) To
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 fee. 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. The Trustee shall refund to the Company the fee (on a pro rata basis)
with
respect to any period after the liquidation of the Trust Fund. The Company
shall
not be responsible for any other fees or charges of the Trustee except as may
be
provided in Section 2(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 consummates a Business Combination and the Trust
Account is liquidated in accordance with Section 1(i) or (j) hereof, the Trustee
or another independent party designated by the Representative shall act as
the
inspector of election to certify the results of the shareholder vote and the
Public Stockholder vote;
(e) That
the
Company’s Chairman or Chief Executive Officer and Chief Financial Officer shall
certify (i) prior to the LOI Termination Date that (A) the Company has entered
into a Business Combination; (B) the Company has entered into a Letter of Intent
or definitive agreement relating to a Business Combination; or (C) that the
Company’s Board of Directors has determined to liquidate the Company; (ii) prior
to the Second Termination Date that (A) the Company has entered into a Business
Combination; (B) the Company’s stockholders voted to extend the time period
available to the Company to consummate a Business Combination to the Third
Termination Date; or (C) that the Company’s Board of Directors has determined to
liquidate the Company; and (iii) prior to the Third Termination Date that (A)
the Company has entered into a Business Combination; or (B) that the Company’s
Board of Directors has determined to liquidate the Company. A copy of any
applicable consents, actions of stockholders, Letter of Intent or definitive
agreement shall be attached as an exhibit to the Officer’s
Certificate;
(f) In
connection with any vote of the Company’s stockholders regarding a Business
Combination, to provide to the Trustee an affidavit or certificate (the
“Report”) 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 shareholders and Public Stockholders regarding such Business
Combination. Such Report shall be attached as an exhibit to the Termination
Letter, as applicable;
(g) Within
five (5) business days after the Underwriters’ over-allotment option (or any
unexercised portion thereof) expires or its exercise in full, to provide the
Trustee notice in writing (with a copy to the Underwriters) of the total amount
of the Deferred Discount, which shall in no event be less than $640,000;
and
(h) As
soon
as practicable after the LOI Termination Date, Second Termination Date or Third
Termination Date, as applicable, to instruct the Trustee to commence liquidation
of the Trust Account as part of the Company’s plan of dissolution and
liquidation.
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 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;
5
(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);
(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
Company 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) Prepare,
execute and file tax reports, income or other tax returns and pay any taxes
with
respect to income and activities relating to the Trust Account, regardless
of
whether such tax is payable by the Trust Account or the Company (including
but
not limited to income tax obligations), it being expressly understood that
as
set forth in Section 2(a), if there is any income or other tax obligation
relating to the Trust Account or the Property in the Trust Account, as
determined from time to time by the Company and regardless of whether such
tax
is payable by the Company or the Trust, at the written instruction of the
Company, the Trustee shall make funds available in cash from the Property in
the
Trust Account an amount specified by the Company as owing to the applicable
taxing authority, which amount shall be paid directly to the Company by
electronic funds transfer, account debit or other method of payment, and the
Company shall forward such payment to the taxing authority; and
(h) Verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to Section 2(b).
6
5. 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 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.
6. 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 to the transfer of copies of the reports and statements relating to
the
Trust Account, whereupon this Agreement shall terminate; provided, however,
that, in the event that the Company does not locate a successor trustee within
ninety days of receipt of the resignation notice from the Trustee, the Trustee
may submit an application to have the Property deposited with the United States
District Court for the Southern District of New York and upon such deposit,
the
Trustee shall be immune from any liability whatsoever that arises due to any
actions or omissions to act by any party after such deposit; or
(b) At
such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Section 1(i) or 1(j) hereof, and distributed
the Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate.
7. 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 listed on the attached
Exhibit
C
(as such
list may be updated from time to time by pursuant to an Officer’s Certificate
signed by the Chairman or Chief Executive Officer and Chief Financial Officer).
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.
(b) This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. It
may
be executed in several counterparts, each one of which shall constitute an
original, and together shall constitute but one instrument.
7
(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 may be made without the prior written consent of the Representative
who, along with each other Underwriter, the parties specifically
agree, is and shall be a third party beneficiary for purposes of this
Agreement; and provided further, any amendment to Section 1(j) shall require
the
vote or consent of holders of 95% of the Public Stockholders, it being the
specific intention of the parties hereto that each Public Stockholder is and
shall be a third-party beneficiary of this Section 6(c) with the same right
and
power to enforce this Section 6(c) as either of the parties hereto. For purposes
of this Section 6(c), the “consent of 95% of the Public Stockholders” 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) 95%
of
the Public Stockholders of record as of the record date, have voted in favor
of
such amendment or modification or (b) 95% of the Public Stockholders of record
as of the record date has delivered to such entity a signed writing approving
such amendment or modification.. As to any claim, cross-claim or counterclaim
in
any way relating to this Agreement, each party waives the right to trial by
jury.
(d) The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York for purposes of resolving any disputes
hereunder. The parties hereto irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive, and hereby waive any objection to such
exclusive jurisdiction and accept such venue, and waive any objection 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:
if
to the
Trustee, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
[
]
Fax
No.:
[ ]
if
to the
Company, to:
Xxxxxxxxx
Asia Acquisition Corp.
00/X
Xxxxx 0
Xxx
Xxxxx
Xxxxx
00
Xxxxxx
Xxxx Xxxxxxx
Xxxx
Xxxx
Attn:
Xxxx Xxxx
Fax
No.:
[ ]
8
in
either
case with a copy to:
Broadband
Capital Management LLC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
T.
Xxxxx Xxxxxx
Fax
No.:
(000) 000-0000
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Fax
No:
(000) 000-0000
and
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
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.
(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. The Trustee hereby consents to the
inclusion of Continental Stock Transfer & Trust Company in the Registration
Statement and other materials relating to the IPO.
[Signature
page to follow]
9
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY,
as Trustee
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| By: | ||
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Name: |
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| Title: | ||
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XXXXXXXXX
ASIA ACQUISITION
CORPORATION
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Name:
Xxxx
Xxxx
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Title:
Chief Executive Officer, President and
Director
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10
SCHEDULE
A
11
EXHIBIT
A
[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 the Investment Management Trust Agreement between Xxxxxxxxx Asia Acquisition
Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of _____________, 2008 (“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 24 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 the 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 (a) the Business Combination has been consummated and (b)
the
provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado Statute
have
been met and (ii) the Company shall deliver to you 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, including, pursuant to the terms of the Underwriting
Agreement, dated as of [__], 2008, between the Company and the Representative,
the portion of the Property attributable to the Deferred Discount (as defined
in
the Trust Agreement), 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 be distributed after the Consummation Date
to
the Company or be distributed immediately and the penalty incurred. Upon the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then the funds held
in
the Trust Account shall be reinvested as provided in the Trust Agreement on
the
business day immediately following the Consummation Date as set forth in the
notice.
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Very
truly yours,
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XXXXXXXXX
ASIA ACQUISITION CORP.
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| By: | ||
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Name:
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Title:
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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(i) of the Investment Management Trust Agreement between Xxxxxxxxx
Asia Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust
Company (“Trustee”), dated as of _______________, 2008 (“Trust Agreement”), this
is to advise you that the Board of Directors of the Company has voted to
dissolve and liquidate the Company. 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
Statute have been met and (b) authorize you, to commence liquidation of the
Trust Account. You will notify the Company and [ ] (“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 the Company’s instructions. You shall have no
obligation to oversee the Designated Paying Agent’s distribution of the funds.
Upon the payment to the Designated Paying Agent of all the funds in the Trust
Account, the Trust Agreement shall be terminated.
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Very
truly yours,
|
||
|
XXXXXXXXX
ASIA ACQUISITION CORP.
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||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Exhibit
10.7
EXHIBIT
C
AUTHORIZED
INDIVIDUAL(S)
AUTHORIZED
FOR TELEPHONE CALL BACK
|
COMPANY:
|
Xxxxxxxxx
Asia Acquisition Corp.
|
|
Xxxx
Xxxx
|
|
|
Telephone:
[ ]
|
|
|
Xxxxxx
Eu
|
|
|
Telephone:
[ ]
|
|
|
Xxxxxxx
Xxxxxx
|
|
|
Telephone:
[ ]
|
|
|
TRUSTEE:
|
Continental
Stock Transfer & Trust Company
|
|
Attn:
[ ]
|
|
|
Telephone:
[ ]
|
|
|
REPRESENTATIVE:
|
Broadband
Capital Management LLC
|
|
T.
Xxxxx Xxxxxx
|
|
|
Telephone:
(000) 000-0000
|
