STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of this ___ day of
January, 2010 by and between Asia Special Situation Acquisition Corp., a limited
life company organized under the laws of the Cayman Islands (“Buyer” or “Asia
Special Situation”) and the signatory on the execution page hereof and its
Affiliates (collectively, “Seller”).1
WHEREAS,
Asia Special Situation was organized for the purpose of acquiring, through a
merger, capital stock exchange, asset acquisition or other similar business
combination, an operating business (“Business Combination”); and
WHEREAS,
Asia Special Situation consummated an initial public offering in January, 2008
(“IPO”) in connection with which it raised gross proceeds of approximately
$115,000,000, a significant portion of which was placed in a trust fund
established by Asia Special Situation for the benefit of its public stockholders
(the “Trust Account”) pending the consummation of a Business Combination, or the
dissolution and liquidation of Asia Special Situation in the event it is unable
to consummate a Business Combination on or prior to January 23, 2010;
and
WHEREAS,
Asia Special Situation has entered into a series of agreements and plan of
merger, asset purchase agreements and exchange agreements to acquire up to three
insurance and reinsurance companies and other assets (collectively, the
“Acquisitions”), all described in Asia Special Situation’s definitive proxy
statement dated January 5, 2010 and filed with the Securities and Exchange
Commission as an exhibit to a Form 6-K dated January 7, 2010 (the “Proxy
Statement”); and
WHEREAS,
pursuant to certain provisions in Asia Special Situation’s Articles and
Memorandum of Association, as amended (the “Memorandum of Association”), a
holder of Asia Special Situation’s ordinary shares, par value $.0001 per share
(the “Ordinary Shares”), issued in Asia Special Situation’s IPO may, if it votes
against the Business Combination, demand that Asia Special Situation redeem such
Ordinary Shares into cash (“Redemption Rights”); and
WHEREAS,
the Acquisitions will not be consummated if the holders of 35% or more of the
Ordinary Shares issued in the IPO vote against the Acquisitions and request
Redemption Rights; and
WHEREAS,
Buyer has requested Seller sell, and Seller has agreed to sell, the number of
Ordinary Shares set forth on the signature page hereof (the
“Shares”).
1
Affiliates” shall have the meaning ascribed to such term under Rule 501 of
Regulation D of the Securities Exchange Act of 1934, as
amended.
1
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE
I
Purchase
and Closing
Section
1.01 Purchase. Seller
hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller
at the Closing (as defined below) the Shares at $10.00 per share (the “Purchase
Price Per Share”) for the aggregate purchase price set forth on the signature
page hereto (the “Aggregate Purchase Price”). Following the execution
of this Agreement, Buyer hereby agrees to provide irrevocable instructions to
its transfer agent in the form attached hereto as Exhibit A, to deliver
the Aggregate Purchase Price at the Closing. Buyer’s obligation to
purchase the Shares from Seller shall be conditioned on the consummation of all
or substantially all of the Acquisitions in accordance with the Proxy
Statement.
Section
1.02 Closing. The closing of the
purchase and sale of the Shares (“Closing”) will occur as soon as practicable,
but in no event more than three (3) business days after the consummation of the
Acquisitions. At the Closing, Seller shall deliver the Shares to an
account specified by Buyer using the Depository Trust Company’s DWAC
(Deposit/Withdrawal at Custodian) System and, upon receipt of all (but not less
than all) of the Shares, the Aggregate Purchase Price shall be paid to Seller by
wire transfer of immediately available funds from Buyer’s Trust Account to an
account specified by Seller. It shall be a condition to the
obligation of Buyer on the one hand and Seller on the other hand, to consummate
the transfer of the Shares and payment of the Aggregate Purchase Price
contemplated hereunder that the other party’s representations and warranties are
true and correct at the Closing with the same effect as though made on such
date, unless waived in writing by the party to whom such representations and
warranties are made.
ARTICLE
II
Voting
of the Shares; Proxy and Waiver of Redemption
Section
2.01 Voting;
Redemption. In further consideration of the Aggregate Purchase
Price, Seller hereby agrees that as soon as practicable, Seller will vote or
send electronic and written instructions to its prime broker holding the Shares
to vote the Shares in favor of the Acquisitions and each of the other proposals
(the “Proposals”) to be submitted at the special meeting, or adjournment
thereof, called for by Buyer for the purpose of voting upon (i) the Acquisitions
and (ii) any other proposal set forth in Buyer’s Proxy Statement describing the
Acquisitions and Proposals (the “Meeting”), each in the manner set forth in such
Proxy Statement.
2
Section
2.02 Prior Votes. If
Seller has already voted in connection with the Meeting, Seller shall either
(i)(a) withdraw and revoke its vote against the Acquisitions and Proposals with
respect to the Shares or (b) send electronic and written instructions to its
prime broker holding the Shares to withdraw and revoke its vote against the
Acquisitions and Proposals with respect to the Shares and shall then send
electronic and written instructions to its prime broker to vote the Shares in
accordance with Section 2.01 or (ii) continue to vote the Shares in favor of the
Acquisitions and the Proposals; provided, further, that in all
applicable cases, Seller shall rescind its demand, or not demand, its Redemption
Rights with respect to the Shares.
Section
2.03 Appointment of
Proxy. Seller hereby appoints each of Xxxx X. Xxxxx and
Xxxxxxxx Xxxxxx as its true and lawful proxies and attorneys-in-fact, with full
power of substitution, to vote all of the Shares in accordance with the terms of
this Agreement. The proxy and power of attorney granted herein shall
be deemed to be coupled with an interest, shall be irrevocable during the term
of this Agreement, and shall survive the death, disability, incompetency,
bankruptcy, insolvency or dissolution of Seller. Furthermore, Seller will, from
time to time as reasonably requested by Buyer, execute and deliver such further
instruments, ancillary agreements or other documents or take such other actions
as may be necessary or advisable to give effect to, confirm, evidence or
effectuate the purposes of the proxy granted by this Section
2.03. Upon the termination of this Agreement in accordance with
Section 7.01, this Section 2.03 shall be of no further force and
effect.
Section
2.04 Evidence of
Vote. Seller shall provide further evidence of both (i) its
vote in favor of the Acquisitions and Proposals, and (ii) its non-demand or
withdrawal of Redemption Rights, within one (1) business day of any reasonable
request by Buyer for such evidence.
Section
2.05 Waiver of Right of
Redemption. By entering into this Agreement, Seller hereby
waives its rights to redeem the Shares. The waiver granted by Seller
pursuant to this Section 2.05 is irrevocable unless and until this Agreement is
terminated in accordance with Section 7.01 and is granted in consideration of
Buyer entering into this Agreement and incurring certain related fees and
expenses.
ARTICLE
III
Representations
and Warranties of the Seller
Seller
hereby represents and warrants to Buyer on the date hereof and on the Closing
Date that:
Section
3.01 Organization. Seller
is a [ENTITY], [duly incorporated/formed], validly existing and in good standing
in the jurisdiction of its [incorporation/formation]. Seller has the requisite
corporate power and authority to execute, deliver and carry out the terms of
this Agreement and to consummate the transactions contemplated hereby and
thereby.
Section
3.02 Authority;
Non-Contravention. This Agreement has been validly authorized,
executed and delivered by Seller and, assuming the due authorization, execution
and delivery thereof by Buyer, is a valid and binding agreement enforceable in
accordance with its terms, subject to the general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors’ rights
generally. The execution, delivery and performance of this Agreement
by Seller does not and will not conflict with, violate or cause a breach of,
constitute a default under, or result in a violation of (i) any agreement,
contract or instrument to which Seller is a party which would prevent Seller
from performing its obligations hereunder or (ii) any law, statute, rule or
regulation to which Seller is subject.
3
Section
3.03 Sophisticated
Seller. Seller is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the sale of Shares to
Buyer.
Section
3.04 Independent
Investigation. Seller, in making the decision to sell the
Shares to Buyer, has not relied upon any oral or written representations or
assurances from Buyer or any of its officers, directors or employees or any
other representatives or agents of Buyer other than as set forth in this
Agreement. Seller has had access to all of the filings made by Asia
Special Situation with the SEC, pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and the Securities Act of 1933, as amended, in
each case to the extent available publicly via the SEC’s Electronic Data
Gathering, Analysis and Retrieval system.
Section
3.05 No Legal Advice from
Buyer. Seller acknowledges it has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Seller’s own legal counsel, investment and tax advisors. Seller is
not relying on any statements or representations of Buyer or any of its
representatives or agents for legal, tax or investment advice with respect to
this Agreement or the transactions contemplated by the Agreement.
Section
3.06 Ownership of
Shares. Seller is the legal and beneficial owner of the Shares
and will transfer to Buyer at the Closing good and marketable title to the
Shares free and clear of any liens, claims, security interests, options, charges
or any other encumbrance whatsoever. The Seller (i) beneficially
owned all of the Shares as of the close of the trading day on January 4, 2010
(the “Record Date”), and (ii) has the sole right to exercise Redemption Rights
and vote the Shares, whether at the Meeting or upon action by written consent,
with respect to all of the Shares, and (iii) none of the Shares were lent out by
Seller or Seller’s broker as of the Record Date. Except as provided
by this Agreement, Seller has not, directly or indirectly, granted any proxies
or entered into any voting trust or other agreement or arrangement with respect
to the voting, regardless of whether such vote would occur at the Meeting or
upon action by written consent, of any of the Shares.
Section
3.07 Number of
Shares. The Shares being transferred pursuant to this
Agreement represent all of the Ordinary Shares beneficially owned by Seller as
of the date hereof, including any such Ordinary Shares which may result from the
exercise of any option, call or other derivative security interest; provided, however, the term
“derivative security interest” shall not include any of Asia Special Situation’s
warrants issued in connection with the IPO.
4
Section
3.08 Cash Account. If
the Shares are not currently held in an account which prohibits rehypothecation
by the Seller’s prime broker, Seller will transfer the Shares into such an
account as soon as practicable following the execution of this Agreement; provided, however, in no event
shall such transfer occur more than two (2) business days from the execution of
this Agreement.
Section
3.09 Seller
Taxes. Seller understands that Seller (and not the Buyer)
shall be responsible for any and all tax liabilities of Seller that may arise as
a result of the transactions contemplated by this Agreement.
Section
3.10 Aggregate Purchase Price
Negotiated. Seller represents and understands that both the
number of Shares and the Aggregate Purchase Price were negotiated figures by the
parties and that the terms and conditions by the parties of this Agreement may
differ from arrangements entered into with other holders of Ordinary
Shares.
Section
3.11 Finder’s Fees. No
investment banker, broker, finder or other intermediary is entitled to a fee or
commission from Buyer in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of Seller.
ARTICLE
IV
Representations
and Warranties of the Buyer
Buyer
hereby represents and warrants to Seller on the date hereof and on the Closing
Date that:
Section
4.01 Organization. Buyer is a
corporation, duly incorporated, validly existing and in good standing in the
jurisdiction of its incorporation. Buyer has the requisite corporate
power and authority to execute, deliver and carry out the terms of this
Agreement and to consummate the transactions contemplated hereby and
thereby.
Section
4.02 Authority;
Non-Contravention. This Agreement has been validly authorized,
executed and delivered by Buyer and assuming the due authorization, execution
and delivery thereof by Seller, is a valid and binding agreement enforceable in
accordance with its terms, subject to the general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors’ rights
generally. The execution, delivery and performance of this Agreement
by Buyer does not and will not conflict with, violate or cause a breach of,
constitute a default under, or result in a violation of (i) any agreement,
contract or instrument to which Buyer is a party which would prevent Buyer from
performing its obligations hereunder or (ii) any law, statute, rule or
regulation to which Buyer is subject.
Section
4.03 Sophisticated
Buyer. Buyer is sophisticated in financial matters and is able
to evaluate the risks and benefits attendant to the purchase of Shares from
Seller.
Section
4.04 Independent
Investigation. Buyer, in making the decision to purchase the
Shares from Seller, has not relied upon any oral or written representations or
assurances from Seller or any of its officers, directors, partners or employees
or any other representatives or agents of Seller other than as set forth in this
Agreement.
5
Section
4.05 No Legal Advice from
Seller. Buyer acknowledges it has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Buyer’s own legal counsel, investment and tax advisors. Buyer is
relying solely on such counsel and advisors and not on any statements or
representations of Seller or any of its representatives or agents for legal, tax
or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
Section
4.06 Buyer Taxes. Buyer
understands that Buyer (and not the Seller) shall be responsible for any and all
tax liabilities of Buyer that may arise as a result of the transactions
contemplated by this Agreement.
ARTICLE
V
Negative
Covenants of the Seller
Section
5.01 No Further Acquisitions of Asia
Special Situation Securities. Seller hereby covenants and
agrees that following the execution of this Agreement and prior to Closing,
Seller shall not acquire any Ordinary Shares, other securities of Asia
Special Situation convertible into or exchangeable for Ordinary Shares in Asia
Special Situation or any options, calls or other rights to acquire Ordinary
Shares of Asia Special Situation or similar securities or rights that are
derivative of, or provide economic benefits based, directly or indirectly, on
the value or price of, any Ordinary Shares or other securities of Asia Special
Situation.
Section
5.02 No Other Proxies or Voting
Agreements. Seller hereby covenants and agrees that except
pursuant to the terms of this Agreement, Seller shall not, directly or
indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any of the Shares,
regardless of whether such vote would occur at the Meeting or upon action by
written consent or (ii) sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect assignment, transfer, encumbrance or
other disposition of, any of the Shares during the term of this
Agreement. Seller shall not seek or solicit any such assignment, transfer,
encumbrance or other disposition or any such contract, option or other
arrangement or understanding with respect to the Shares and agrees to notify
Buyer promptly, and to provide all details requested by Buyer, if Seller shall
be approached or solicited, directly or indirectly, by any person with respect
to the Shares.
ARTICLE
VI
Acknowledgement;
Waiver
Section
6.01 Acknowledgement;
Waiver. Seller (i) acknowledges that Buyer may possess or have
access to material non-public information which has not been communicated to
Seller; (ii) hereby waives any and all claims, whether at law, in equity or
otherwise, that he, she, or it may now have or may hereafter acquire, whether
presently known or unknown, against Buyer or any of its officers, directors,
employees, agents, affiliates, subsidiaries, successors or assigns relating to
any failure to disclose any non-public information in connection with the
transactions contemplated by this Agreement, including without limitation, any
such claims arising under the securities or other laws, rules and regulations,
and (iii) is aware that Buyer is relying on the foregoing acknowledgement and
waiver in clauses (i) and (ii) above, respectively, in connection with the
transactions contemplated by this Agreement.
6
ARTICLE
VII
Miscellaneous
Section
7.01 Termination. Notwithstanding
any provision in this Agreement to the contrary, this Agreement shall become
null and void and of no further force and effect upon the earlier to occur: (i)
termination by the written agreement of the parties to this Agreement or (ii)
the day on which the Acquisitions is terminated.
Section
7.02 Counterparts;
Facsimile. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument. This Agreement or any counterpart may be executed via
facsimile transmission, and any such executed facsimile copy shall be treated as
an original.
Section
7.03 Governing
Law. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of New
York. Each of the parties hereby agrees that any action, proceeding
or claim against it arising out of or relating in any way to this Agreement
shall, to the fullest extent applicable, be brought and enforced first in
the Southern District of New York, then to such other court in the State of New
York as appropriate and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. Each of the parties hereby waives
any objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
Section
7.04 Remedies
Cumulative. Each of the parties hereto acknowledges and agrees
that, in the event of any breach of any covenant or agreement contained in this
Agreement by the other party, money damages may be inadequate with respect to
any such breach and the non-breaching party may have no adequate remedy at
law. It is accordingly agreed that each of the parties hereto shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to seek injunctive relief and/or to compel specific
performance to prevent breaches by the other party hereto of any covenant or
agreement of such other party contained in this Agreement. Accordingly,
Seller hereby agrees Buyer is entitled to an injunction prohibiting any conduct
by the Seller in violation of this Agreement and Seller shall not seek the
posting of any bond in connection with such request for an
injunction. Furthermore, in any action by Buyer to enforce this
Agreement, Seller waives its right to assert any counterclaims and its right to
assert set-off as a defense. The prevailing party agrees to pay all
costs and expenses, including reasonable attorneys' and experts' fees that such
prevailing party may incur in connection with the enforcement of this
Agreement.
Section
7.05 Severability. If
any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions and covenants of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated
7
Section
7.06 Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be
assigned by Seller without the prior written consent of Buyer. Buyer
may assign this Agreement to a third party without the prior consent of Seller
as long as such assignee shall immediately purchase the Shares from
Seller.
Section
7.07 Headings. The
descriptive headings of the Sections hereof are inserted for convenience only
and do not constitute a part of this Agreement.
Section
7.08 Entire Agreement; Changes in
Writing. This Agreement constitutes the entire agreement among
the parties hereto and supersedes and cancels any prior agreements,
representations and warranties, whether oral or written, among the parties
hereto relating to the transaction contemplated hereby. Neither this
Agreement nor any provision hereof may be changed or amended orally, but only by
an agreement in writing signed by the other party hereto.
Section
7.09 Further
Assurances. If at any time any of the parties hereto
shall consider or be advised that any further documents or actions are necessary
or desirable to vest, perfect or confirm of record or otherwise the rights,
title or interest in or to the Shares or under or otherwise pursuant to this
Agreement, the parties hereto shall execute and deliver such further documents
or take such actions and provide all assurances and to take and do all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title and interest in or to the Shares or under or
otherwise pursuant to this Agreement, including, without limitation, any
documentation or actions which may be required in connection with the assignment
from Buyer as permitted under Section 7.06 hereof.
Section
7.10 Trust Waiver. The
Trust Account is invested in U.S. government securities in a trust account at
Xxxxxx Xxxxxxx and held in trust by Continental Stock Transfer & Trust
Company (the “Trustee”) pursuant to the Investment Management Trust Account
Agreement, dated as of January 16, 2008, between Asia Special Situation and
Trustee. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller agrees that it does
not now have, and shall not at any time have, any claim to, or make any claim
against, the Trust Account or any asset contained therein, regardless of whether
such claim arises as a result of, in connection with or relating in any way to,
the business relationship between Seller, on the one hand, and Asia Special
Situation, on the other hand, this Agreement, or any other agreement or any
other matter, and regardless of whether such claim arises based on contract,
tort, equity or any other theory of legal liability. Other than with respect to
the Aggregate Purchase Price to be paid to Seller in connection with this
Agreement, Seller hereby irrevocably waives any and all claims it may have, now
or in the future (in each case, however, prior to the consummation of a business
combination), and will not seek recourse against, the Trust Account for any
other reason whatsoever in respect thereof. Other than with respect to an action
for the recovery of the Aggregate Purchase Price to be paid to Seller in
connection with this Agreement, in the event Seller commences any other action
or proceeding based upon, in connection with, relating to or arising out of any
matter relating to Asia Special Situation, which proceeding seeks, in whole or
in part, relief against the Trust Account or the public stockholders of Asia
Special Situation, whether in the form of money damages or injunctive relief,
Asia Special Situation shall be entitled to recover from Seller the associated
legal fees and costs in connection with any such action.
8
Section
7.11 Seller W-9. Seller agrees to provide to Buyer an
Internal Revenue Service Request for Taxpayer Identification Number and
Certification Form W-9 or W-8, as applicable.
9
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
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ASIA
SPECIAL SITUATION
ACQUISITION
CORP.
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By:
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Name:
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Title:
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[SELLER]
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By:
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Name:
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Title:
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Purchase
Price Per Share:
Number of
Shares:
Aggregate
Purchase Price:
Exhibit
A
C/O
M&C CORPORATE SERVICES LIMITED
X.X.
XXX 000 XX, XXXXXX HOUSE, SOUTH XXXXXX XXXXXX
XXXXXX
XXXX, XXXXX XXXXXX, XXXXXX XXXXXXX
January
__, 2010
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Di Paolo
Re: Trust
Account No.
Gentlemen:
Asia Special Situation Acquisitions
Corp. (the “Company”) is providing these irrevocable instructions to you in
connection with the above described Trust Account established in connection with
and pursuant to an Investment Management Trust Agreement dated as of January 16,
2008 between Continental Stock Transfer & Trust Company as Trustee (the
“Trust Agreement”). Upper case terms used herein shall have the
meanings ascribed to such terms in the Trust Agreement.
In the event the Company notifies you
that it has consummated a Business Combination, or, in connection with this and
other required transfers of Trust Account funds will consummate a Business
Combination, and assuming you are the Trustee on such date, then, in
consideration for the electronic transfer of [NUMBER] ordinary shares of the
Company to an account specified by the Company (the “Company Account”) upon the
receipt of the shares in the Company Account, you are irrevocably instructed to
deliver the sum of [AMOUNT] to [SELLER] in accordance with the bank wire
instructions provided to you below:
[INSERT
INSTRUCTIONS]
1
Exhibit A
The address for [SELLER] is
[ADDRESS]. The contact person for [SELLER] is [PERSON]. He
can be reached at [NUMBER].
Kindly acknowledge where indicated
below, your receipt and understanding of these instructions and return a copy to
Ellenoff Xxxxxxxx & Schole LLP, attn: Xxxxx X. Xxxxxxx, Esq. facsimile
number [NUMBER].
A facsimile signed and electronically
delivered copy of this letter shall be deemed an original.
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Very
truly yours,
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By:
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Name:
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Title:
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Acknowledged
and Agreed:
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
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By:
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Name:
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Title:
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2
