Investment Management Trust Agreement
This
Investment Management Trust Agreement (this “Agreement”)
is
made as of [●], 2008 by and between ASM Acquisition Company Limited (the
“Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”).
WHEREAS,
the Company’s Registration Statement on Form F−1, No. 333-148549 (the
“Registration
Statement”),
relating to the Company’s initial public offering of securities (“IPO”)
has
been declared effective as of the date hereof by the Securities and Exchange
Commission (the “Effective
Date”);
WHEREAS,
UBS Securities LLC is acting as the representative (the “Representative”)
of the
underwriters (collectively, the “Underwriters”)
in the
IPO;
WHEREAS,
the Company will complete a private placement of 4,550,000 warrants at a price
of $1.00 per warrant (the “Private
Placement”)
immediately prior to the completion of the IPO;
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Amended and Restated Articles of Association, $148,500,000 of the net proceeds
of the IPO and the Private Placement ($170,212,500 if the Underwriters’
over-allotment option is exercised in full), including $5,250,000 for deferred
underwriting discounts and commissions ($6,037,500 if the Underwriters’
over-allotment option is exercised in full), 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, par value $0.001, issued in the IPO.
The amount to be delivered to the Trustee will be referred to herein as the
“Property,”
and
the parties for whose benefit the Trustee shall hold the Property will be
referred to together with the Company as the “Beneficiaries”;
WHEREAS,
pursuant to the Underwriting Agreement, a portion of the Property equal to
$5,250,000 ($6,037,500, if the Underwriters’ over-allotment option is exercised
in full) (or the amount specified in a notice pursuant to paragraph 2(d) hereof)
is attributable to deferred underwriting commissions that will become payable
by
the Company to the Underwriters upon the consummation of an initial business
combination (as that term is defined in the Registration Statement, an
“Initial
Business Combination”)
(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.
NOW,
THEREFORE, in consideration of the premises herein contained and other good
and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Agreement
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 a segregated trust account (the “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 instruction of the Company, to invest and reinvest
the
Property in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days
or
less or in any open ended investment company registered under the Investment
Company Act of 1940 that holds itself out as a money market fund, selected
by
the Company meeting the condition of paragraphs (c)(2), (c)(3) and (c)(4) of
Rule 2a-7 promulgated under the Investment Company Act of 1940;
(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 and the Underwriters 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;
(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
Underwriters to do so;
(h) Render
to
the Company and to the Underwriters, 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 only after receipt of and only in accordance
with the terms of a letter (the “Termination
Letter”),
in a
form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its Chief Executive Officer or
Chairman or other authorized 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; provided,
however, that in the event that a Termination Letter has not been received
by
the Trustee by the Last Date (as defined in paragraph 2(g) below), the Trust
Account shall be liquidated in accordance with the procedures set forth in
the
Termination Letter attached as Exhibit B hereto and distributed to the
stockholders of record on the Last Date; and
(j) Distribute
the funds as directed in any Tax Disbursement Letter, Disbursement Letter or
Quarterly Distribution Certificate (each as defined in paragraph 3(a) below)
and
any other documents referred to therein, and distribute, upon receipt of an
Extension Notification Letter (as defined in paragraph 2(g) below), to the
Company’s shareholders who exercised their redemption rights in connection with
the Extension (as defined in paragraph 2(g) below) an amount equal to their
pro
rata share of the amounts in the Trust Account relating to the shares for which
such shareholders have exercised redemption rights in connection with a vote
of
shareholders for the Extension, in each case in accordance with paragraph 3
below.
2. Agreements
and Covenants of the Company
The
Company hereby agrees and covenants to:
(a) Give
all
instructions to the Trustee hereunder in writing, signed by the Company’s Chief
Executive Officer or one of its Co-Chief Investment Officers. In addition,
except with respect to its duties under paragraph 1(i) above, the Trustee shall
be entitled to rely on, and shall be protected in relying on, any verbal or
telephonic advice or instruction which it in good faith believes to be given
by
any one of the persons authorized above to give written instructions, provided
that the Company shall promptly confirm such instructions in
writing;
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(b) 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 Company may participate in such action with its
own
counsel;
(c) Pay
the
Trustee an initial acceptance fee of $[●] and an annual fee of $[●] (it being
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 shall pay the annual fee on each
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 Account. The Company shall not be responsible for any other fees
or
charges of the Trustee except as may be provided in paragraph 2(b) hereof (it
being expressly understood that the Property shall not be used to make any
payments to the Trustee under such paragraph);
(d) Within
five business days after the Underwriters’ over-allotment option (or any
unexercised portion thereof) expires or is exercised in full, provide the
Trustee with a notice in writing (with a copy to the Representative) of the
total amount of the Deferred Discount, which shall in no event be less than
$5,250,000;
(e) In
connection with any vote of the Company’s stockholders on whether to approve an
Initial Business Combination or the Extension (as defined in paragraph 2(g)
below), provide to the Trustee an affidavit or certificate of a firm regularly
engaged in the business of soliciting proxies and tabulating stockholder votes
(which firm may be the Trustee) verifying the vote of the Company’s stockholders
regarding such Initial Business Combination or Extension;
(f) In
all
cases, provide the Representative with a copy of any Termination Letters and/or
any other correspondence that it sends to the Trustee with respect to any
proposed withdrawal from the Trust Account promptly after it issues the same;
and
(g) Within
five business days after the vote of the Company’s shareholders regarding the
Extension (as defined below) provide the Trustee with a letter in form
substantially similar to that attached hereto as Exhibit F (an “Extension
Notification Letter”)
(with
a copy to the Representatives) providing (i) that the Initial Last Date (as
defined below) has been extended (the “Extension”)
to the
date that is 12 months after the Initial Last Date (such date, the “Extended
Last Date”; as used herein the term “Initial
Last Date”
shall
mean the date that is 24 months after the Effective Date and the term
“Last
Date”
shall
mean the Initial Last Date unless and until there is the Extension in which
case
it shall thereafter mean the Extended Last Date), and (ii) instructions for
the
distribution of funds to the Company’s stockholders who exercised their
redemption rights in connection with the Extension.
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3. Liquidation
and Distribution of Trust Account Property.
(a)
The
Trustee shall commence liquidation of the Trust Account only upon receipt of,
and only in accordance with the terms of a Termination Letter in a form
substantially similar to that attached hereto as either Exhibit A or Exhibit
B,
signed on behalf of the Company by its Chief Executive Officer or Chairman
and
affirmed by one of its Co-Chief Investment Officers, and complete the
liquidation of the Trust Account and distribute the Property in the Trust
Account only as directed in the Termination Letter and any other documents
referred to therein; provided, however, that the Trustee shall disburse such
funds from the Trust Account (i) from time to time as may be necessary timely
to
pay any taxes incurred as a result of interest or other income earned on the
Property held in the Trust Account or other tax obligations of the Company,
only
upon receipt and in accordance with the terms of a letter in form substantially
similar to that attached hereto as Exhibit C (a “Tax
Disbursement Letter”),
signed on behalf of the Company by its Chief Executive Officer or Chairman
and
copied to Authorized Counsel (as defined below), as evidenced by his or her
countersignature thereto, and complete the disbursement of funds from the Trust
Account and distribute such funds only as directed in the Tax Disbursement
Letter and any other documents referred to therein; (ii) from time to time
as
may be necessary for working capital purposes, only upon receipt and in
accordance with the terms of a letter in form substantially similar to that
attached hereto as Exhibit D (a “Disbursement
Letter”),
signed on behalf of the Company by its Chief Executive Officer or Chairman
and
copied to Authorized Counsel, as evidenced by his or her countersignature
thereto, the Trustee shall disburse to the Company such amount as may be
requested by the Company as directed in the Disbursement Letter and the other
documents referred to therein, provided, however, that the aggregate amount
distributed by the Trustee to the Company pursuant to this paragraph 3(a)(ii)
may not exceed the lesser of (y) the aggregate amount of interest and any other
income actually received or paid on amounts in the Trust Account less an amount
equal to estimated taxes that are or will be due on such income at an assumed
rate of 40% and (z) $2,500,000; (iii) on a quarterly basis following the end
of
the applicable fiscal quarter of the Company as interest income distributions,
only upon receipt and in accordance with the terms of a letter in form
substantially similar to that attached hereto as Exhibit E (a “Quarterly
Distribution Certificate”),
signed on behalf of the Company by its Chief Executive Officer or Chairman
and
copied to Authorized Counsel, as evidenced by his or her countersignature
thereto, the Trustee shall disburse to the holders of the Company’s ordinary
shares issued in the IPO such amount as may be requested by the Company as
directed in the Quarterly Distribution Certificate and the other documents
referred to therein, provided, however, that the aggregate amount distributed
by
the Trustee to the holders pursuant to this paragraph 3(a)(iii) may not exceed
the aggregate amount of interest and any other income actually received or
paid
on amounts in the Trust Account less an amount equal to estimated taxes that
are
or will be due on such income at an assumed rate of 40%; and (iv) as may be
necessary for distribution of funds to the shareholders who exercised their
redemption rights in connection with the Extension upon receipt and only in
accordance with the terms of an Extension Notification Letter signed on behalf
of the Company by
its
Chief Executive Officer or Chairman and copied to Authorized Counsel, as
evidenced by his or her countersignature thereto, and complete the disbursement
of funds from the Trust Account and distribute such funds only as directed
in
the Extension Notification Letter and the other documents referred to
therein.
For
purposes of this Agreement, “Authorized Counsel” shall mean, at any date, the
attorney retained and authorized by the Company to perform such
functions.
(b)
The
limited distributions referred to in paragraphs 3(a)(i), 3(a)(ii) and
3(a)(iii) above shall be made only from interest and any other income collected
on the Property. Except as provided in paragraph 3(a) above, no other
distributions from the Trust Account shall be permitted except in accordance
with paragraph 1(i) hereof.
4
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 paragraphs 1
and 3 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 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 paragraph
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
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; or
(h) subject
to the requirements of paragraph 3 of this Agreement, pay any taxes on behalf
of
the Trust Account to any governmental entity or taxing authority.
5. 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. 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
5
(b) At
such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of paragraph 1(i) hereof, and distributed the
Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate except with respect to paragraph 2(b).
6. Miscellaneous.
(a) 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.
(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. 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.
(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:
[____________________]
[____________________]
[____________________]
[____________________]
Fax
No.:
[●]
Attn:
[●]
if
to the
Company, to:
ASM
Acquisition Company Limited
Xxxx
000-0, 0xx
Xxxxx
Xx. Xxxxxx’s Xxxxxxxx
0
Xxx
Xxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxx
Fax
No.:
[ •
]
Attn:
Xxxxxx Xxx, Chief Executive Officer
6
in
either
case with a copy to:
UBS
Investment Bank
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax
No:
(000) 000-0000
Attn:
[●]
and
Xxxxxxxx
Chance US LLP
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Fax
No.:
(000) 000-0000
Attn:
Xxxxxxxxx X. Xxxxxxx, Esq.
(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.
(h) 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, and 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 the event
the Trustee has a claim against the Company under this Agreement, including,
without limitation, under paragraph 2(b), the Trustee will pursue such
claim solely against the Company and not against the Property held in the Trust
Account.
(i) The
Trustee acknowledges and agrees that it is the specific intention of the parties
hereto that the Representative is and shall be a third-party beneficiary of
the
provisions of this Agreement pertaining to the Deferred Discount (including
paragraph 6(c)) and the Trustee’s obligations under this Agreement with respect
thereto (but solely of those provisions and solely with respect to such
obligations of the Trustee) with the same right and power to enforce those
provisions as either of the parties hereto.
[Signature
Page Follows]
7
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
[________________________________]
By:
_________________________________
Name:
Title:
ASM
ACQUISITION
COMPANY LIMITED
By:
_________________________________
Name:
Title:
8
Exhibit
A
[LETTERHEAD
OF COMPANY]
[date]
[Transfer
Agent]
[Address]
Re:
Trust
Account No. [●] Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between ASM
Acquisition Company Limited (the “Company”)
and
[____________] (the “Trustee”),
dated
as of [●], 2008 (the “Trust
Agreement”),
this
is to advise you that the Company has entered into an agreement (the
“Business
Agreement”)
with
[●] (the “Target
Business”)
to
consummate a business combination with the Target Business (the “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 (the “Consummation
Date”).
Pursuant
to Paragraph 2(e) of the Trust Agreement, we are providing you with [an
affidavit] [a certificate] verifying the vote of the Company’s stockholders duly
approving the Business Combination in accordance with the terms of the Company’s
Amended and Restated Articles of Association.
The
[affidavit] [certificate] includes the identities of the public stockholders
who
voted against the Business Combination and properly exercised their redemption
rights in connection therewith.
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
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, (ii) the
Company shall deliver to you written instructions with respect to the transfer
of the funds held in the Trust Account other than the Deferred Discount (the
“Instruction
Letter”)
and
(iii) the Representative shall deliver to you written instructions for delivery
of the Deferred Discount. You are hereby directed and authorized to transfer
the
funds held in the Trust Account immediately upon your receipt of written notice
from counsel and the Instruction Letter (a) to the public stockholders who
exercised their redemption rights in connection with the Business Combination
in
an amount equal to their pro rata share of the amounts in the Trust Account
as
of two business days prior to the Consummation Date (including the Deferred
Discount and any income actually received on the Trust Account balance and
held
in the Trust Account, but less an amount equal to estimated taxes that are
or
will be due on such income at an assumed rate of 40% relating to the shares
for
which shareholders have exercised redemption rights in connection with the
vote
of shareholders for the Business Combination, provided that such stockholders
have tendered the applicable shares of the Company’s common stock to the
Trustee; (b) to the Representative in an amount equal to the Deferred Discount
as so directed by them, and (b) the remainder 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 and the Trust
Account closed.
A-1
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.
Very
truly yours,
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Affirmed:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
A-2
Exhibit
B
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re:
Trust
Account No. [●] Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between ASM
Acquisition Company Limited (the “Company”)
and
[_____________] (the “Trustee”),
dated
as of [●], 2008 (the “Trust
Agreement”),
this
is to advise you that (i) the Company has been unable to effect a Business
Combination within the time frame specified in the Amended and Restated Articles
of Association of the Company, (ii) the Company’s existence expired in
accordance with the terms of its Amended and Restated Articles of Association
on
[●]; and (iii) the Company is proceeding to dissolve and liquidate.
Capitalized
terms used but not defined herein shall have the meanings given them in the
Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize and
request that you commence liquidation of the Trust Account as part of the
Company’s plan of dissolution and distribution. In connection with this
liquidation, you are hereby authorized to establish a record date for the
purposes of determining the stockholders of record entitled to receive their
per
share portion of the Trust Account. The record date shall be within 10 days
of
the liquidation date, or as soon thereafter as is practicable. Company has
appointed [●] to serve as its designated paying agent (the “Designated
Paying Agent”).
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.
B-1
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 and the Trust Account
closed.
Very
truly yours,
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Affirmed:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
B-2
Exhibit
C
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re:
Trust
Account No. [●] Tax Disbursement Letter
Gentlemen:
Pursuant
to paragraph 3(a)(i) of the Investment Management Trust Agreement between ASM
Acquisition Company Limited (the “Company”)
and
[______________] (the “Trustee”)
dated
as of [●] (the “Trust
Agreement”),
this
is to advise you that the Trust Account, as defined in the Trust Agreement,
has
incurred a total of [●] in taxes (the “Tax
Payments”)
for
the period from [●], 200[●] to [●], 200[●] (the “Tax
Period”)
as a
result of interest and other income earned on the Property, as defined in the
Trust Agreement or other
tax
obligations of the Company,
in each
case during the Tax Period.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
distribute from the Trust Account proceeds from the Property (as defined in
the
Trust Agreement) equal to the aggregate Tax Payments on such dates, in such
amounts and to such payees as indicated on the Schedule of Tax Payments attached
hereto as Schedule 1. All checks should be delivered to the Company at
[address].
Very
truly yours,
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Authorized
Counsel Signatory:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
C-1
Schedule
1
Schedule
of Tax Payments
Payment
Date: [●]
Amount:
[●]
Payee:
[●]
Payment
Date: [●]
Amount:
[●]
Payee:
[●]
Payment
Date: [●]
Amount:
[●]
Payee:
[●]
C-2
Exhibit
D
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re:
Trust
Account No. [●] Disbursement Letter
Gentlemen:
Pursuant
to paragraph 3(a)(ii) of the Investment Management Trust Agreement between
ASM Acquisition Company Limited (the “Company”)
and
[_____________________] dated as of [●] (the “Trust
Agreement”),
we
hereby authorize you to disburse from the Trust Account proceeds from the
Property, as defined in the Trust Agreement, equal to $[●], to [●] via wire
transfer on [●], 200[●].
Very
truly yours,
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Authorized
Counsel Signatory:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
D-1
Exhibit
E
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re:
Trust
Account No. [●] Quarterly Distribution Certificate
Gentlemen:
Pursuant
to paragraph 3(a)(iii) of the Investment Management Trust Agreement between
ASM Acquisition Company Limited (the “Company”)
and
[_________] dated as of [●] (the “Trust
Agreement”),
you
are instructed to distribute to the holders of the Company’s ordinary shares
issued in the IPO of record as of , 200_, interest income earned on the Trust
Account (as defined in the Trust Agreement) during the quarter ended
,
200_, pursuant to the instructions attached hereto as Schedule A. Attached
hereto is a copy of the minutes of the meeting of the Board of Directors of
the
Company approving the record date and distribution, certified by the Secretary
of the Company as true and correct and in full force and effect.
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Authorized
Counsel Signatory:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
E-1
Exhibit
F
[LETTERHEAD
OF COMPANY]
[date]
[Trustee]
[Address]
Re:
Trust
Account No. [●] Extension Notification Letter
Gentlemen:
Pursuant
to paragraphs 2(g) and 3(a)(iv) of the Investment Management Trust
Agreement between ASM Acquisition Company Limited (the “Company”)
and
[●] dated as of [●], 2008 (the “Trust
Agreement”),
this
is to advise you that on [●], 200[●] (the “Approval
Date”)
the
Company’s shareholders approved an extension (the “Extension”)
of the
Initial Last Date, as defined in the Trust Agreement, to [●], 2011 (the
“Extended
Last Date”).
Pursuant
to paragraph 2(e) of the Trust Agreement, we are providing you with [an
affidavit] [a certificate] verifying the vote of the Company’s shareholders duly
approving the Extension in accordance with the terms of the Company’s Amended
and Restated Articles of Association.
The
[affidavit] [certificate] includes the identities of the public shareholders
who
voted against the Extension and properly exercised their redemption rights
in
connection therewith.
You
are
hereby directed and authorized to transfer from the Trust Account proceeds
from
the Property, as defined in the Trust Agreement, to public shareholders who
exercised their redemption rights in connection with the Extension and who
have
tendered the applicable shares of the Company’s common stock to you, in an
amount equal to their pro rata share of the amounts in the Trust Account as
of
the Approval Date (including the Deferred Discount and any income actually
received on the Trust Account balance and held in the Trust Account, but less
an
amount equal to estimated taxes that are or will be due on such income at an
assumed rate of 40%) relating to the shares for which such shareholders have
exercised redemption rights in connection with the vote of shareholders for
the
Extension.
Very
truly yours,
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________
Name:
Title:
Authorized
Counsel Signatory:
By:
_________________________________
Name:
Title:
cc: UBS
Securities LLC
F-1
