INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of January 16, 2008 by and between Asia Special Situation
Acquisition Corp. (the “Company”) whose principal office is located at X.X. Xxx
000XX, Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand Cayman, Cayman
Islands and Continental Stock Transfer & Trust Company (“Trustee”) located
at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS,
the Company’s Registration Statement on Form S-1, File No. 333-145163
(“Registration Statement”), for its initial public offering of securities
(“IPO”) has been declared effective on January 16, 2008 by the Securities and
Exchange Commission (“Effective Date”); and
WHEREAS,
the Company has issued securities in a private placement (the “Placement”);
and
WHEREAS,
Maxim Group LLC (“Maxim”) is acting as the representative of the underwriters
(the “Underwriters”); and
WHEREAS,
as described in the Company’s Registration Statement, (i) in accordance with the
Company’s Amended and Restated Certificate of Incorporation, $100,000,000 of the
net proceeds of the IPO ($115,000,000 if the Underwriters’ over-allotment option
is exercised in full), (ii) in accordance with the Subscription Agreement,
dated
as of January 16, 2008, among the Company and certain purchasers, $5,725,000
of
the gross proceeds of the Placement (together with the IPO proceeds, the “Base
Deposit”), and (iii) in accordance with the Underwriting Agreement, dated
January 16, 2008, between the Company and Maxim, as representative of the
Underwriters, an additional $3,000,000 ($3,450,000 if the Underwriters’
over-allotment option is exercised in full), representing a portion of the
Underwriters’ discount (the “Deferred Discount”), $100,000,000 will be delivered
to the Trustee to be deposited and held in a trust account for the benefit
of
the Company, the public holders of the Ordinary Shares, par value $.0001 per
share, of the Company (“Ordinary Shares”) included in the units of the Company’s
securities issued in the IPO (the “Units”) and Maxim and the Underwriters. 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 Company and Maxim and the Underwriters 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;
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, in segregated trust accounts (“Trust Account”)
established by the Trustee with at X.X. Xxxxxx Xxxxx Bank N.A. and at a
brokerage institution 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” or in money market funds
selected by the Company meeting the conditions specified in Rule 2a-7
promulgated under the Investment Company Act of 1940, as amended, as determined
by the Company. 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)
Promptly notify the Company of all communications received by it with respect
to
any Property requiring action by the Company;
(f)
To the extent that the information is in the possession of the
Trustee, 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 Maxim to do so;
(h)
Render to the Company, 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)
Commence liquidation of the Trust Account upon receipt of the
Officers Certificate signed by the President and Chief Executive Officer 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 President and Chief Executive 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 automatic plan of dissolution and
liquidation. The Trustee understands and agrees that, except as provided in
Section 3(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 stockholder vote in favor of the Business Combination (as hereinafter
defined). As used in this Agreement, the term “Business Combination” means the
acquisition by the Company, through capital stock exchange, control
through contractual arrangements,
asset or
stock acquisition of, or similar business combination with, one or more
entities located in Asia as more fully described in the prospectus forming
a
part of the Registration Statement; and
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 or the Internal Revenue
Service by wire transfer out of the Property in the Trust Account, the amount
indicated by the Company as required to pay income taxes.
2
(b)
Upon written request from the Company stating that such
distribution pursuant to this Section 2(b) shall be used to fund the working
capital requirements of the Company and the costs related to identifying,
researching and acquiring a prospective target business, in each case as
described in the prospectus that forms a part of the Registration Statement,
the
Trustee shall distribute to the Company an amount equal to $2,000,000 of the
income earned and collected on the Base Deposit through the last day of the
month immediately preceding the date of receipt of the Company’s written
request.
(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, signed by on behalf of the Company in accordance with Section
3(a) of this Agreement, 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, (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 this Section 2, no other distributions from the Trust Account
shall be permitted except in accordance with Sections 1(i) and 3(j)
hereof.
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 President and Chief Executive Officer. In addition,
except with respect to its duties under paragraph 1(i) and 3(j), the Trustee
shall be entitled to rely on, and shall be protected in relying on, any verbal
or telephonic advice or instruction which it in good faith believes to be given
by any one of the persons authorized above to give written instructions,
provided that the Company shall promptly confirm such instructions in
writing;
(b)
The
Company shall provide Maxim with a copy of any Termination Letters, Officers
Certificates and/or any other correspondence that it sends to the Trustee with
respect to any proposed withdrawal from the Trust Account promptly after it
sends same;
(c)
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, provided that the Trustee shall obtain the
consent of the Company with respect to the selection of counsel, which
consent shall not be unreasonably withheld. The Trustee may not agree to
settle any Indemnified Claim without the prior written consent of the Company.
The Company may participate in such action with its own counsel at its own
expense;
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(d)
Pay the Trustee an initial acceptance fee, an annual fee and a
transaction processing fee for each disbursement made pursuant to Sections
2(a)
and 2(b) as set forth on Schedule A hereto, which fees shall be subject to
modification by the parties from time to time. It is expressly understood that
the Property shall not be used to pay such fees and further agreed that said
transaction processing fees shall be deducted by the Trustee from the
disbursements made to the Company pursuant to Section 2(b). The Company shall
pay the Trustee the initial acceptance fee and first year’s fee at the
consummation of the IPO and thereafter on the anniversary of the Effective
Date.
The Trustee shall refund to the Company the annual 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
set forth in this Section 3(c) and 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 Sections);
(e)
That, in the event that the Company consummates a Business
Combination and the Trust Account is liquidated in accordance with Section
1(i)
hereof, an independent party designated by Maxim shall act as the inspector
of
election to certify the results of the stockholder vote;
(f)
That the Officers Certificate referenced in Sections 1(i) and 3(j)
hereof shall require the Company’s President and Chief Executive Officer to each
certify the following (wherever applicable): (1) prior to the LOI Termination
Date (as defined herein), the Company has entered into a bona fide Letter of
Intent (as defined herein) 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 (as defined herein), 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”) pursuant to the unanimous written consent of the Board has approved
(where applicable): (i) the Letter of Intent; and/or (ii) the Business
Combination. A copy of such consent and the Letter of Intent and/or the
definitive agreement relating to the Business Combination so approved shall
be
attached as an exhibit to the Officers Certificate;
(h)
In
the
event the over-allotment option is exercised in full, the Company shall be
prohibited from receiving distributions of income earned on the Base Deposit
until after the first $600,000 of income is earned on the Base Deposit (net
of
taxes payable), which amount shall be added to the Base Deposit resulting in
amount of $10.00 for each share represented by certificates held by Public
Stockholders;
(i)
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 Underwriters) of the total amount
of the Deferred Fee and Deferred Discount; and
(j)
Intentionally
left blank.
4
(k) (i)
Subject to the limitations and conditions set forth in paragraph (ii)
of this
section 3(j) or subject to an affirmative vote or consent of the holders of
at
least 95% of the Company’s outstanding ordinary shares to amend the Company’s
Amended and Restated Memorandum and Articles of Association, as soon as
practicable after 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”)), instruct the Trustee to commence liquidation of the Trust Account as
part of the Company’s automatic plan of dissolution and liquidation in
accordance with the Company’s Amended and Restated Memorandum and Articles of
Association. The Trustee, upon receiving written instruction from the Company
and Maxim, 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 receiving
instructions from the Company to do so, notifying the Public Stockholders of
such event. 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.
(ii)
Paragraph (i)
of this
Section 3(j) shall be subject to the following conditions and
limitations:
(x)
If the Company has entered into 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, then the Company shall
not be required to send an instruction letter to the Trustee relating to the
liquidation of the Trust Account until the earlier of a Business Combination
or
the Second Termination Date.
(y) On
the date on which the Trustee is to begin delivery to each Public Stockholder
of
its ratable share of the Property, the Company shall provide written
instructions to the Trustee to deliver the Property according to the following
schedule: First,
to each
Public Stockholder an amount equal to $10.00 for each share represented by
certificates delivered by such Public Stockholder to the Company or the Trustee
as prescribed in Paragraph (i)
of
Section 3(j) of this Agreement, and Second,
to
deliver to each Public Stockholder the remainder, if any, of its ratable share
of the Property.
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 Sections 1 and 2 hereof and the Trustee shall have no liability
to
any party except for liability arising out of its own gross negligence or
willful misconduct;
(b)
Institute any proceeding for the collection of any principal and
income arising from, or institute, appear in or defend any proceeding of any
kind with respect to, any of the Property unless and until it shall have
received 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;
5
(e)
Assume that the authority of any person designated by the Company
to give instructions hereunder shall not be continuing unless provided otherwise
in such designation, or unless the Company shall have delivered a written
revocation of such authority to the Trustee;
(f)
The other parties hereto or to anyone else for any action taken or
omitted by it, or any action suffered by it to be taken or omitted, in good
faith and in the exercise of its own best judgment, except for its gross
negligence or willful misconduct. The Trustee may rely conclusively and shall
be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Trustee), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and acceptability of any information therein contained) which is believed by
the
Trustee, in good faith, to be genuine and to be signed or presented by the
proper person or persons. The Trustee shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this agreement
or any of the terms hereof, unless evidenced by a written instrument delivered
to the Trustee signed by the proper party or parties and, if the duties or
rights of the Trustee are affected, unless it shall give its prior written
consent thereto;
(g)
Verify the correctness of the information set forth in the
Registration Statement or to confirm or assure that any acquisition made by
the
Company or any other action taken by it is as contemplated by the Registration
Statement;
(h)
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 1(i), 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
(i)
Verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to Section 1(i), 2(a), 2(b) or 2(c) above.
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; 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 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, but shall not be obligated to, 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);
or
(c)
At such time that the Trustee has completed the liquidation of the
Trust Account and distributed the Property in accordance with Sections 1(i)
and
3(j) hereof, this Agreement shall terminate except with respect to Section
3(b).
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. 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. 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 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. 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 may be made without the prior written consent of
Maxim, 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 3(j) shall require
the
consent of 95% 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 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 Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx and Xxxxx X. Di Paolo
Fax
No.:
(000) 000-0000
if
to the
Company, to:
P.O.
Box
309GT, Xxxxxx House
South
Church Street
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Attn:
Xxxxxx Xx
in
either
case with a copy to:
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
Fax
No.:
(000) 000-0000
8
and
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxx, 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 Maxim.
(g)
Each of the Trustee and the Company hereby represents that it has
the full right and power and has been duly authorized to enter into this
Agreement and to perform its respective obligations as contemplated hereunder.
The Trustee acknowledges and agrees that it shall not make any claims or proceed
against the Trust Account, including by way of set-off, and shall not be
entitled to any funds in the Trust Account under any circumstance.
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Trustee
By:
/s/
Xxxxx Di Paolo ______________________
Name:
Xxxxx Di Paolo
Title:
Chief Financial Officer
By:
/s/
Xxxxxx Ho___________________________
Name:
Xxxxxx Xx
Title:
Chief Executive Officer
9
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Asia
Special Situation Acquisition Corp. (“Company”) and Continental Stock Transfer
& Trust Company (“Trustee”), dated as of January 16, 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 a Target Business (“Business
Combination”) on or about [_______]. The Company shall notify you at least 48
hours in advance of the actual date of the consummation of the Business
Combination (“Consummation Date”). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Trust
Agreement.
In
accordance with paragraph [___] of the Amended and Restated Memorandum and
Articles of Association, the Business Combination has been approved by the
stockholders of the Company and by the Public Stockholders holding a majority
of
the IPO Shares cast at the meeting relating to the Business Combination, and
Public Stockholders holding less than 35% of the IPO Shares have voted against
the Business Combination and given notice of exercise of their redemption rights
described in paragraph [___] of the Amended and Restated Memorandum and Articles
of Association of the Company. Pursuant to Section 2(c) 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
shall direct in writing on the Consummation Date.
On
the
Consummation Date (i) counsel for the Company shall deliver to you written
notification that the Business Combination has been consummated or will,
concurrently with your transfer of funds to the accounts as directed by the
Company, be consummated, 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 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.
10
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then, upon receipt of
written instruction from the Company, the funds held in the Trust Account shall
be reinvested as provided in the Trust Agreement on the business day immediately
following the Consummation Date as set forth in the notice.
|
Very
truly yours,
|
||
| |
|
|
| By: | ||
|
|
||
| Cc: Maxim Group LLC | ||
11
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to paragraphs 1(i) and 2(e) of the Investment Management Trust Agreement between
Asia Special Situation Acquisition Corp. (“Company”) and Continental Stock
Transfer & Trust Company (“Trustee”), dated as of January 16, 2008 (“Trust
Agreement”), this is to advise you that the Company has been unable to effect a
Business Combination with a Target Company within the time frame specified
in
the Company’s Memorandum and Articles of Association, as described in the
Company’s prospectus relating to its IPO.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account. The Company has appointed
[ ]
to
serve as its Designated Paying Agent; accordingly, you will notify the Company
and the “Designated Paying Agent” in writing as to when all of the funds in the
Trust Account will be available for immediate transfer (the “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 terminate
in accordance with the terms thereof.
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Very
truly yours,
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| By: | ||
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| Cc: Maxim Group LLC | ||
12
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
|
|
AUTHORIZED
TELEPHONE
NUMBER(S)
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Company:
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P.O
Box 309GT, Xxxxxx House
South
Church Street
Xxxxxx
Town, Grand Cayman
Cayman
Islands
Attn:
Xxxxxx Xx
|
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(000)
000-0000
|
|
|
|
|
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Maxim
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
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(000)
000-0000
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Trustee:
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Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx Di Paolo, CFO
|
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(000)
000-0000
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13
SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
Asia Special Situation Acquisition Corp. and
Continental
Stock Transfer & Trust Company
|
Fee
Item
|
Time
and method of payment
|
Amount
|
|
Initial
acceptance fee
|
Initial
closing of IPO by wire transfer
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$
1,000.00
|
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Annual
fee
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First
year, initial closing of IPO by wire transfer; thereafter on the
anniversary of the effective date of the IPO by wire transfer or
check
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$
3,000.00
|
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Transaction
processing fee for disbursements to Company under Sections 2(a) and
2(b)
|
Deduction
by Trustee from disbursement made to Company under Section
2(b)
|
$
250.00
|
| Agreed: | ||
| Asia Special Situation Acquisition Corp. | ||
| |
|
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| Dated: January 16, 2008 | By: | /s/ Xxxxxx Xx |
|
Xxxxxx Xx |
||
| Chief Executive Officer | ||
| Continental Stock Transfer & Trust Co. | ||
| |
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| By: | /s/ Xxxxx Di Paolo | |
|
Authorized
Officer
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14
