RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
RIGHT
OF FIRST REFUSAL AND
CORPORATE
OPPORTUNITIES AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT (this “Agreement”) is made as of
__________ ___, 2010 by and between S.E. Asia Emerging Market Co., Ltd, a
British Virgin Islands company organized with limited liability (the “Company”) and the additional
entities set forth on the signature pages to this Agreement (each, a “Grantor” and collectively,
“Grantors”) in
connection with the Company’s proposed public offering of units consisting of
(i) one subunit consisting of one ordinary share, no par value (“Ordinary Shares”) of the
Company and one Class B Warrant to purchase Ordinary Shares and (ii) one Class A
Warrant to purchase Ordinary Shares, pursuant to a registration statement on
Form F-1, filed by the Company with the Securities and Exchange Commission (as
amended, the “Registration
Statement”).
RECITALS
WHEREAS,
each Grantor is an affiliate of one or more of the initial shareholders of the
Company; and
WHEREAS,
the Company and each of the Grantors will be attempting to consummate one or
more acquisitions, share exchanges, share reconstructions and amalgamations or
contractual control arrangements with, purchase of all or substantially all of
the assets of, or any other similar business combinations with operating
businesses or assets (a “Business Combination”);
and
WHEREAS,
the Company and each of the Grantors may also be seeking investment
opportunities which may be a part of, in connection with or deemed a Business
Combination; and
WHEREAS,
the Company and each of the Grantors believe it is in their best interests to
clarify any potential Business Combination and investment opportunities for
which the parties shall have the right of first refusal.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Right of First
Refusal.
For the
term specified in
Section 2 of this Agreement and subject to subsections (b), (c) and
(d) of this Section
1, each Grantor hereby grants to the Company a right of first
refusal as follows:
(a) Grantor
shall not enter into any agreement to purchase or invest in a
business whose primary operations are in Southeast Asia having a
value equal to or in excess of 80% of the amount held in the Trust Account (as
defined below), as computed in accordance with standard valuation practices and
procedures (such opportunity a “suitable opportunity”), without first presenting
such suitable opportunity to the Company’s directors, and will not enter into
any such agreement until the Company’s directors determine, within the time
frame and in the manner specified below, not to pursue such Business Combination
opportunity.
(b) Notwithstanding
anything to the contrary in this Agreement, the Company agrees that any such
business entity with respect to which Grantor has initiated any contacts or
entered into any discussions or negotiations, formal or informal, regarding
Grantor’s acquisition of, or investment in, such business prior to the
completion of the Company’s initial public offering, as set forth in the
Registration Statement, will not be subject to Section 1(a) hereof, unless
Grantor declines to pursue such business opportunity and notifies the Company of
the same in writing.
(c) After
review of any potential Business Combination or investment opportunity, the
Company may release the right of first refusal set forth in this 1(a) hereof
with respect to such Business Combination or suitable
opportunity. Decisions by the Company to release Grantor to pursue
such suitable opportunity will be made by the unanimous vote of the Company’s
disinterested directors.
(d) Grantor
shall provide written notice to the Company of any such suitable opportunity
brought to its attention by its current partners, principals, directors,
officers or employees within ten (10) business days of the identification of
such suitable opportunity. Any right of first refusal granted shall expire
thirty (30) days from the date of the written notice unless earlier
released pursuant to Section 1(c), provided that, during
such thirty (30)-day
period, the Company has failed to commence discussions regarding a Business
Combination with such suitable opportunity. The Company shall notify the Grantor
as soon as reasonably practicable within such 30-day period if it has commenced
discussions regarding a Business Combination with such suitable opportunity, in
which case the relevant period of exclusivity shall be tolled indefinitely,
until the Company releases such suitable opportunity pursuant to Section
1(c).
2. Term. This Agreement
shall become effective on its execution and shall remain in effect for a period
to expire upon the earlier of: (i) the consummation by the Company of a
Business Combination or (ii) 24 months from the date of the Registration
Statement.
3. Notices. All notices
or communications hereunder shall be in writing, addressed as
follows:
To the
Company:
S.E. Asia
Emerging Market Co., Ltd
00 Xxxxx
Xxxxx Xxxx #00-00
Xxxx Xxxx
Xxxxxxxx
Xxxxxxxxx
000000
Attn: Xxxx
Xxxxxx
with
copies to (which shall not constitute notice):
Ellenoff,
Xxxxxxxx & Schole LLP
000 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
If to a
Grantor, to such Grantor’s address set forth on the signature pages
to this Agreement.
All notices, statements or other
documents which are required or contemplated by this Agreement shall be: (i) in
writing and delivered personally or sent by first class registered or certified
mail, overnight courier service or facsimile transmission to the address
designated in writing, (ii) by facsimile to the number most recently provided to
such party or such other address or fax number as may be designated in writing
by such party and (iii) by electronic mail, to the electronic mail address most
recently provided to such party or such other electronic mail address as may be
designated in writing by such party. Any notice or other
communication so transmitted shall be deemed to have been given on the day of
delivery, if delivered personally, on the business day following receipt of
written confirmation, if sent by facsimile transmission or email, one (1)
business day after delivery to an overnight courier service or five (5) days
after mailing if sent by mail.
4. Severability. If any
term or provision of this Agreement or the performance thereof shall be invalid
or unenforceable to any extent, such invalidity or unenforceability shall not
affect or render invalid or unenforceable any other provision of this Agreement
and this Agreement shall be valid and enforced to the fullest extent permitted
by law.
5. Entire
Agreement. This Agreement, as the same may be amended from
time to time in accordance with the terms hereof, contains the entire agreement
among the parties hereto relating to the subject matter hereof and supersedes in
all respects any prior or other agreement or understanding concerning the
subject matter hereof between the Company and the Grantors.
6. Waiver. The
failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way effect the validity of this Agreement or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
7. Amendment. This
Agreement is for the benefit of the shareholders of the Company and may not be
amended or terminated without the prior written approval of (i) the holders of a
majority in interest the Company’s outstanding Ordinary Shares and (ii) the
parties hereto.
8. Survival. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this Section 8 are in
addition to the survivorship provisions of any other section of this
Agreement.
9. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this
Agreement by facsimile or electronic transmission shall constitute valid and
sufficient delivery thereof.
10. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
11. Mutual
Drafting. This Agreement is the joint product of Grantor and
the Company and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of such parties and shall not be
construed for or against any party hereto.
12.
Governing Law;
Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by
and construed and enforced in accordance with the laws of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The
parties hereby (i) agree that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
first in the U.S. District Court for the Southern District of New York, then to
such other federal or state courts located in the State of New York, and
irrevocably submits to such jurisdiction in New York, which jurisdiction shall
be exclusive and (ii) waive any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum. THE PARTIES HERETO, TO THE FULLEST
EXTENT PERMITTED BY LAW, WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF, OR IN CONNECTION WITH, THIS
AGREEMENT.
13. Trust Waiver.
Notwithstanding anything herein to the contrary, each Grantor hereby waives any
and all right, title, interest or claim of any kind, regardless of whether such
claim arises based on contract, tort, equity or any other theory of legal
liability (“Claim”) in
or to any distribution from the trust account in which a substantial amount of
the net proceeds of the Company’s initial public offering will be deposited and
held for the benefit of the public shareholders (the “Trust Account”) and hereby
agrees not to seek recourse, reimbursement, payment or satisfaction for any
Claim against the Trust Account for any reason whatsoever.
[Signature Page
Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Right of First Refusal
and Corporate Opportunities Agreement as of the date first specified
above.
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S.E.
ASIA EMERGING MARKET CO., LTD
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By:
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Name:
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Xxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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PARALLAX
CAPITAL MANAGEMENT
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By:
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Name:
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Xxxxxx
Xxx Park
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Title:
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Address:
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H&A
ADVISORY PTE., LTD.
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By:
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Name:
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Pranata
Hajadi
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Title:
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Address:
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SIRIUS
VENTURE CONSULTING PTE. LTD.
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By:
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Name:
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Xxxxxx
Hin Sun Xxxx
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Title:
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Address:
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PANTHERA
CAPITAL GROUP
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By:
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Name:
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Xxxxx
Xxxxxxxxx
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Title:
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Address:
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PERSEKUTUAN
HAJADI & ASSOCIATES
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| By: |
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| Name: |
Pranata
Hajadi
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| Title: | ||
| Address: | ||
