UNDER
THE SECURITIES ACT OF
1933
British Virgin Islands
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6770
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N/A
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(State
or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Barry Grossman, Esq.
Stuart Neuhauser, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, New York, NY10105 (212) 370-1300 (212) 370-7889 Facsimile |
Simon Schilder
Ogier Ritter House, 6th Floor Wickhams Cay II PO Box 3170 Road Town, Tortola British Virgin Islands, VG1110 |
David Alan Miller, Esq.
Jeffrey M. Gallant, Esq. Graubard Miller The Chrysler Building 405 Lexington Avenue New York, New York10174 (212) 818-8800 (212) 818-8881 Facsimile |
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Large
accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company
x
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Title of Each Class of Security Being Registered
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Amount Being
Registered |
Proposed Maximum
Offering Price per Security (1) |
Proposed Maximum
Aggregate Offering Price (1)(2) |
Amount of
Registration Fee |
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Units, each
consisting of one ordinary share of no par value, one Right entitling the holder to receive one-tenth (1/10) of one ordinary share, and one Warrant
entitling the holder to purchase one half (1/2) of one ordinary share
(2)
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6,900,000 | Units | $ | 10.00 | $ | 69,000,000 | $ | 8,887 | ||||||||||
Ordinary Shares
of no par value, included as part of the Units
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6,900,000 | | | | ||||||||||||||
Rights included
as part of the Units
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6,900,000 | | | | ||||||||||||||
Warrants
included as part of the Units
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6,900,000 | | | | ||||||||||||||
Ordinary Shares
of no par value, underlying Rights included as part of the Units
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690,000 | | | | ||||||||||||||
Total
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$ | 69,000,000 | $ | 8,887 | (3) |
(1)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
(2)
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Includes Units and ordinary shares, Warrants and Rights underlying such Units which may be issued on exercise of a 45-day option granted to the Underwriters to cover over-allotments, if any. |
(3)
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Previously paid. |
PRELIMINARY
PROSPECTUS
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SUBJECT TO COMPLETION, AUGUST 27, 2014 |
Price to
Public |
Underwriting
Discounts and Commissions (1) |
Proceeds, Before
Expenses, to us |
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Per
Unit
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$ | 10.00 | $ | 0.325 | $ | 9.675 | ||||||||
Total
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$ | 60,000,000 | $ | 1,950,000 | $ | 58,050,000 |
(1)
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Please see the section titled Underwriting for further information relating to the underwriting arrangements agreed to between us and the underwriters in this offering. |
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F-1 |
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references in this prospectus to we, us or our company refer to DT Asia Investments Limited, a BVI business company with limited liability; |
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references to the Companies Act and the Insolvency Act are to the BVI Business Companies Act, 2004 and the Insolvency Act, 2003 of the British Virgin Islands, respectively; |
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references in this prospectus to founder shares refer to the 1,725,000 ordinary shares currently held by the initial shareholders (as defined below), which include up to an aggregate of 225,000 ordinary shares subject to forfeiture by our sponsor to the extent that the underwriters over-allotment option is not exercised in full or in part; |
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references to our initial shareholders refer to our sponsor, officers and directors that hold founder shares; |
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references to our EBC units refer to 30,000 (or 33,279 if the overallotment is exercised in full) units we are selling privately to EarlyBirdCapital upon consummation of this offering; |
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references to our insider units refer to 290,000 (320,471 if the overallotment is exercised in full) units we are selling privately to our sponsor and its designees upon consummation of this offering; |
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references to private units refer to the insider units and EBC units; |
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references to ordinary shares refer to the ordinary shares of no par value in the company; |
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references to private shares, private rights and private warrants refers to the ordinary shares, rights and warrants included within the private units; |
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references to our management or our management team refer to our officers and directors; |
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references to our public shares refer to ordinary shares which are being sold as part of the units in this offering (whether they are purchased in this offering or thereafter in the open market) and references to public shareholders refer to the holders of our public shares, including our initial shareholders to the extent our initial shareholders purchase public shares, provided that their status as public shareholders shall exist only with respect to such public shares; |
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references to our rights or public rights refer to the rights which are being sold as part of the units in this offering; |
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references to our sponsor refer to DeTiger Holdings Limited, a company incorporated in the British Virgin Islands owned and controlled by Ms. Winnie Lai Ling Ng; and |
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references to our warrants or public warrants refer to the warrants which are being sold as part of the units in this offering; |
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except as specifically provided otherwise, the information in this prospectus assumes that the underwriters will not exercise their over-allotment option. |
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Middle-Market Growth Business . We will primarily seek to acquire one or more growth businesses with a total enterprise value in excess of $300,000,000. We believe that there are a substantial number of potential target businesses within this valuation range that can benefit from new capital for scalable operations to yield significant revenue and earnings growth. We do not currently intend to acquire either a start-up company or a company with negative cash flow. |
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Companies with Opportunity to Strengthen Management and Add Value . We will seek to acquire one or more businesses that provide a platform for the existing management team to leverage the experience of our management team. We believe that the operating expertise of our management team is well suited to complement and, if beneficial, replace the targets management team. |
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Companies in Business Segments that are Strategically Significant to China . We will seek to acquire those businesses with strong technological know-how, distribution networks and/or business practices in economic sectors that are currently experiencing significant Asia/China outbound investing. Such sectors include: Energy and resources, food processing, retail, manufacturing, and high technology business segments. |
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Business with Revenue and Earnings Growth Potential We will seek to acquire one or more businesses that have the potential for significant revenue and earnings growth through a combination of brand and new product development, increased production capacity, expense reduction and synergistic follow-on acquisitions resulting in increased operating leverage. |
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Companies with Potential for Strong Free Cash Flow Generation We will seek to acquire one or more businesses that have the potential to generate strong, stable and increasing free cash flow. We intend to focus on one or more businesses that have predictable revenue streams and definable low working capital and capital expenditure requirements. We may also seek to prudently leverage this cash flow in order to enhance shareholder value. |
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Benefit from Being a Public Company We intend to only acquire a business or businesses that will benefit from being publicly traded and which can effectively utilize access to broader sources of capital and a public profile that are associated with being a publicly traded company. |
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experience in sourcing, acquiring, operating, financing and selling businesses; |
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reputation for integrity and fair dealing with sellers, capital providers and target management teams; |
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significant experience as advisors on transactions; |
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experience in executing transactions under varying economic and financial market conditions; and |
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experience in operating in developing environments around the world; |
Securities
offered
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6,000,000 units, at $10.00 per unit, each unit consisting of one ordinary share, one right and one warrant. Each right entitles the holder to
automatically receive one-tenth (1/10) of an ordinary share upon consummation of our initial business combination. Each warrant entitles the holder
thereof to purchase one-half of one ordinary share at a price of $12.00 per full share, subject to adjustment as described in this
prospectus.
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This
is different from other offerings similar to ours whose units include one share and one warrant to purchase one share. Our management believes that
investors in similarly structured blank check offerings, and those likely to invest in this offering, have come to expect the units of such companies
to include one share and one or more other securities which would allow the holders to acquire additional shares. Without the ability to acquire such
additional shares, our management believes that investors would not be willing to purchase units in such companies initial public offerings. In
this offering, by offering rights as part of the units that automatically entitle the holder to receive only one-tenth of a share and warrants that
entitle the holder to purchase one-half of one share, as opposed to warrants included in units of similarly structured blank check offerings that most
often entitle the holder to receive a full share, our management believes we have reduced the number of shares that we would be obligated to issue
after the offering. However, this unit structure may cause our units to be worth less than if they included a warrant to purchase one full share.
Furthermore, no fractional shares will be issued upon exercise of the warrants. Accordingly, unless you acquire at least two warrants, you will not be
able to receive a share upon exercise of your warrants.
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Listing of
our securities and proposed symbols
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We
anticipate the units, and the ordinary shares, rights and warrants once they begin separate trading, will be listed on Nasdaq under the symbols
CADTU, CADT, CADTR, and CADTW, respectively.
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Each
of the ordinary shares, rights and warrants may trade separately on the 90
th
day after the date of this prospectus unless EarlyBirdCapital
determines that an earlier date is acceptable (based upon, among other things, its assessment of the relative strengths of the securities markets and
small capitalization companies in
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general, and the trading pattern of, and demand for, our securities in particular). In no event will EarlyBirdCapital allow separate trading
of the ordinary shares, rights and warrants until we file an audited balance sheet reflecting our receipt of the gross proceeds of this
offering.
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Once
the ordinary shares, rights and warrants commence separate trading, holders will have the option to continue to hold units or separate their units into
the component pieces. Holders will need to have their brokers contact our transfer agent in order to separate the units into ordinary shares, rights
and warrants.
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We
will file a Current Report on Form 8-K with the SEC, including an audited balance sheet, promptly upon the consummation of this offering, which is
anticipated to take place three business days from the date the units commence trading. The audited balance sheet will reflect our receipt of the
proceeds from the exercise of the over-allotment option if the over-allotment option is exercised on the date of this prospectus. If the over-allotment
option is exercised after the date of this prospectus, we will file an amendment to the Form 8-K or a new Form 8-K to provide updated financial
information to reflect the exercise of the over-allotment option. We will also include in the Form 8-K, or amendment thereto, or in a subsequent Form
8-K, information indicating if EarlyBirdCapital has allowed separate trading of the ordinary shares, rights and warrants prior to the 90
th
day after the date of this prospectus.
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Ordinary
shares:
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Number of
issued and outstanding before this offering
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1,725,000 shares (includes up to an aggregate of 225,000 founder shares that are subject to forfeiture by our sponsor if the over-allotment
option is not fully exercised by the underwriters)
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Number to
be issued and outstanding after this offering and sale of private units
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7,820,000 shares (assumes the over-allotment option has not been exercised and an aggregate of 225,000 founder shares have been forfeited by
our sponsor)
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Rights:
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Number
outstanding before this offering
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0
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Number to
be outstanding after this offering and sale of private units
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6,320,000 rights (assumes the over-allotment option has not been exercised.)
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Terms of
the Rights
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Each
holder of a right will automatically receive one-tenth (1/10) of an ordinary share upon consummation of our initial business combination. If we are
unable to complete an initial business combination within the required time period and we liquidate the funds held in the trust account, holders of
rights will not receive any of such funds for their rights and the rights will expire worthless.
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Warrants:
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Number
outstanding before this offering
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0
warrants
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Number to
be outstanding after this offering and sale of private units
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6,320,000 warrants (assumes the over-allotment option has not been exercised)
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Exercisability
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Each
warrant is exercisable for one-half of one ordinary share. Because the warrants may only be exercised for whole numbers of shares, only an even number
of warrants may be exercised at any given time.
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Exercise
price
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$12.00 per whole share. No public warrants will be exercisable for cash unless we have an effective and current registration statement
covering the ordinary shares issuable upon exercise of the warrants and a current prospectus relating to such ordinary shares. It is our current
intention to have an effective and current registration statement covering the ordinary shares issuable upon exercise of the warrants and a current
prospectus relating to such ordinary shares in effect promptly following consummation of an initial business combination. Notwithstanding the
foregoing, if a registration statement covering the ordinary shares issuable upon exercise of the public warrants is not effective within 90 days
following the consummation of our initial business combination, public warrant holders may, until such time as there is an effective registration
statement and during any period when we shall have failed to maintain an effective registration statement, exercise warrants on a cashless basis
pursuant to an available exemption from registration under the Securities Act. In such event, each holder would pay the exercise price by surrendering
the warrants for that number of ordinary shares equal to the quotient obtained by dividing (x) the product of the number of ordinary shares underlying
the warrants, multiplied by the difference between the exercise price of the warrants and the fair market value (defined below) by (y) the
fair market value. The fair market value shall mean the average reported last sale price of the ordinary shares for the 10 trading days
ending on the day prior to the date of exercise. For example, if a holder held 300 warrants to purchase 150 shares and the fair market value on the
date prior to exercise was $15.00, that holder would receive 30 shares without the payment of any additional cash consideration. If an exemption from
registration is not available, holders will not be able to exercise their warrants on a cashless basis.
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Exercise
period
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The
warrants will become exercisable on the later of the completion of an initial business combination or 12 months from the date of this prospectus. The
warrants will expire at 5:00 p.m., New York City time, on the fifth anniversary of our completion of an initial business combination, or earlier upon
redemption.
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Redemption
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We
may redeem the outstanding warrants (excluding the private warrants but including any outstanding warrants issued upon exercise of the unit purchase
option issued to EarlyBirdCapital and/or its designees), in whole and not in part, at a price of $0.01 per warrant:
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at any time while the warrants are exercisable,
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upon a minimum of 30 days prior written notice of redemption,
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if, and only if, the last sales price of our ordinary shares equals or exceeds $18.00 per share for any 20 trading days
within a 30 trading day period ending three business days before we send the notice of redemption, and
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if, and only if, there is a current registration statement in effect with respect to the ordinary shares underlying such
warrants at the time of redemption and for the entire 30-day trading period referred to above and continuing each day thereafter until the date of
redemption.
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If
the foregoing conditions are satisfied and we issue a notice of redemption, each warrant holder can exercise his, her or its warrant prior to the
scheduled redemption date. However, the price of the ordinary shares may fall below the $18.00 trigger price as well as the $12.00 warrant exercise
price after the redemption notice is issued.
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The
redemption criteria for our warrants have been established at a price which is intended to provide warrant holders a reasonable premium to the initial
exercise price and provide a sufficient differential between the then-prevailing share price and the warrant exercise price so that if the share price
declines as a result of our redemption call, the redemption will not cause the share price to drop below the exercise price of the
warrants.
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If we
call the warrants for redemption as described above, our management will have the option to require all holders that wish to exercise warrants to do so
on a cashless basis. In such event, each holder would pay the exercise price by surrendering the warrants for that number of ordinary
shares equal to the quotient obtained by dividing (x) the product of the number of ordinary shares underlying the warrants, multiplied by the
difference between the exercise price of the warrants and the fair market value (defined below) by (y) the fair market value. The
fair market value shall mean the average reported last sale price of the ordinary shares for the 10 trading days ending on the third
trading day prior to the date on which the notice of redemption is sent to
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the
holders of warrants. Whether we will exercise our option to require all holders to exercise their warrants on a cashless basis will depend
on a variety of factors including the price of our ordinary shares at the time the warrants are called for redemption, our cash needs at such time and
concerns regarding dilutive share issuances.
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Offering
proceeds to be held in the trust account
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$60,300,000 of the net proceeds of this offering (or $69,345,000 if the over-allotment option is exercised in full), taking into account the
$3,200,000 (or $3,537,500 if the over-allotment option is exercised in full), we will receive from the sale of the private units, or $10.05 per unit
sold to the public in this offering, will be placed in a trust account in the United States at JPMorgan Chase Bank, N.A., maintained by
Continental Stock Transfer & Trust Company, acting as trustee pursuant to an agreement to be signed on the date of this prospectus. The remaining
$550,000 of net proceeds of this offering will not be held in the trust account.
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Except as set forth below, the proceeds held in the trust account will not be released until the earlier of: (1) the completion of our initial
business combination within the required time period and (2) our redemption of 100% of the outstanding public shares if we have not completed a
business combination in the required time period. Therefore, unless and until our initial business combination is consummated, the proceeds held in the
trust account will not be available for our use for any expenses related to this offering or expenses which we may incur related to the investigation
and selection of a target business and the negotiation of an agreement to acquire a target business.
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Notwithstanding the foregoing, there can be released to us from the trust account (1) any interest earned on the funds in the trust account
that we need to pay our income or other tax obligations and (2) any remaining interest earned on the funds in the trust account that we need for our
working capital requirements. With these exceptions, expenses incurred by us may be paid prior to a business combination only from the net proceeds of
this offering not held in the trust account of approximately $550,000; provided, however, that in order to meet our working capital needs following the
consummation of this offering if the funds not held in the trust account and interest earned on the funds held in the trust account available to us are
insufficient, our initial shareholders, officers and directors or their affiliates may, but are not obligated to, loan us funds, from time to time or
at any time, in whatever amount they deem reasonable in their sole discretion. Each loan would be evidenced by a promissory note. The notes would
either be paid upon consummation of our initial business combination,
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without interest, or, at the lenders discretion, up to $500,000 of the notes may be converted upon consummation of our business
combination into additional private units at a price of $10.00 per unit (which, for example, would result in the holders being issued 55,000 ordinary
shares if $500,000 of notes were so converted since the 50,000 rights included in the private units would result in the issuance of 5,000 ordinary
shares upon the closing of our business combination as well as 50,000 warrants to purchase 25,000 shares). Our shareholders have approved the issuance
of the ordinary shares and warrants upon conversion of such notes, to the extent the holder wishes to so convert them at the time of the consummation
of our initial business combination. If we do not complete a business combination, the loans will only be repaid with funds not held in the trust
account, to the extent available.
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Limited
payments to insiders
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There
will be no fees, reimbursements or other cash payments paid to our initial shareholders, officers, directors or their affiliates prior to, or for any
services they render in order to effectuate, the consummation of our initial business combination (regardless of the type of transaction that it is)
other than:
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repayment at the closing of this offering of a non-interest bearing loan in an aggregate amount of $125,000 made by our
sponsor;
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payment to our sponsor (DeTiger Holdings Limited., an entity controlled by Winnie Lai Ling Ng) of a total of $10,000 per
month for office space, utilities and secretarial and administrative services commencing on the date that our securities are first listed on Nasdaq
capital market;
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reimbursement of out-of-pocket expenses incurred by them in connection with certain activities on our behalf, such as
identifying and investigating possible business targets and business combinations; and
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repayment upon consummation of our initial business combination of any loans which may be made by our initial shareholders
or their affiliates or our officers and directors to finance transaction costs in connection with an intended initial business
combination.
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There
is no limit on the amount of out-of-pocket expenses reimbursable by us; provided, however, that to the extent such expenses exceed the available
proceeds not deposited in the trust account and the interest income earned on the amounts held in the trust account that may be released to us, such
expenses would not be reimbursed
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by us
unless we consummate an initial business combination. Our audit committee will review and approve all reimbursements and payments made to our sponsor
or member of our management team, or our or their respective affiliates, and any reimbursements and payments made to members of our audit committee
will be reviewed and approved by our Board of Directors, with any interested director abstaining from such review and approval.
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Manner of
conducting redemptions
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We
will provide our shareholders with the opportunity to redeem all or a portion of their public shares upon the completion of our initial business
combination either (i) in connection with a shareholder meeting called to approve the business combination or (ii) by means of a tender
offer.
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In
connection with any proposed initial business combination, we intend to seek shareholder approval of such initial business combination at a meeting
called for such purpose at which shareholders may seek to redeem their shares, regardless of whether they vote for or against the proposed business
combination. In such case, we will consummate our initial business combination only if we have net tangible assets of at least $5,000,001 upon such
consummation and a majority of the outstanding ordinary shares voted are voted in favor of the business combination.
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We
chose our net tangible asset threshold of $5,000,001 to ensure that we would avoid being subject to Rule 419 promulgated under the Securities Act.
However, if we seek to consummate an initial business combination with a target business that imposes any type of working capital closing condition or
requires us to have a minimum amount of funds available from the trust account upon consummation of such initial business combination, our net tangible
asset threshold may limit our ability to consummate such initial business combination (as we may be required to have a lesser number of shares redeem)
and may force us to seek third party financing which may not be available on terms acceptable to us or at all. As a result, we may not be able to
consummate such initial business combination and we may not be able to locate another suitable target within the applicable time period, if at
all.
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Our
initial shareholders have agreed (A) to vote their founder shares and any public shares in favor of any proposed business combination, (B) not to
propose an amendment to our Memorandum and Articles of Association with respect to our pre-business combination activities prior to the consummation of
such a business combination, (C) not to redeem any shares (including the
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founder shares) into the right to receive cash from the trust account in connection with a shareholder vote to approve our proposed initial
business combination or a vote to amend the provisions of our Memorandum and Articles of Association relating to shareholders rights or
pre-business combination activity and (D) that the founder shares shall not participate in any liquidating distribution upon winding up if a business
combination is not consummated. None of our initial shareholders or their affiliates has indicated any intention to purchase units in this offering or
any units or ordinary shares in the open market or in private transactions. However, if a significant number of shareholders vote, or indicate an
intention to vote, against a proposed business combination, our initial shareholders, officers, directors or their affiliates could make such purchases
in the open market or in private transactions in order to influence the vote. Our initial shareholders, officers, directors and their affiliates could
purchase sufficient shares so that the initial business combination may be approved without the majority vote of public shares held by non-affiliates.
Notwithstanding the foregoing, our officers, directors, initial shareholders and their affiliates will not make purchases of ordinary shares if the
purchases would violate Section 9(a)(2) or Rule 10b-5 of the Exchange Act, which are rules designed to stop potential manipulation of a companys
stock.
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If a
shareholder vote is not required and we do not decide to hold a shareholder vote for business or other legal reasons, we will, pursuant to our amended
and restated certificate of incorporation:
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conduct the redemptions pursuant to Rule 13e-4 and Regulation 14E of the Exchange Act, which regulate issuer tender offers,
and
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file tender offer documents with the SEC prior to completing our initial business combination which contain substantially
the same financial and other information about the initial business combination and the redemption rights as is required under Regulation 14A of the
Exchange Act, which regulates the solicitation of proxies.
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In
the event we conduct redemptions pursuant to the tender offer rules, our offer to redeem will remain open for at least 20 business days, in accordance
with Rule 14e-1(a) under the Exchange Act, and we will not be permitted to complete our initial business combination until the expiration of the tender
offer period. In addition, the tender offer will be conditioned on public shareholders not tendering more than a specified number of public shares,
which number will be based on the requirement that we may not redeem public shares in an
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amount that would cause our net tangible assets to be less than $5,000,001 (so that we are not subject to the SECs penny
stock rules) or any greater net tangible asset or cash requirement which may be contained in the agreement relating to our initial business
combination. If public shareholders tender more shares than we have offered to purchase, we will withdraw the tender offer and not complete the initial
business combination.
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Redemption
rights
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At
any meeting called to approve an initial business combination, any public shareholder voting either for or against such proposed business combination
will be entitled to demand that his ordinary shares be redeemed for a pro rata portion of the amount then in the trust account (initially approximately
$10.05 per share, plus any pro rata interest earned on the funds held in the trust account and not previously released to us or necessary to pay our
taxes).
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If we
seek shareholder approval in connection with our initial business combination, we will consummate such transaction only if we have net tangible assets
of at least $5,000,001 upon such consummation and a majority of the outstanding ordinary shares voted are voted in favor of the business combination
(if a vote is required or being obtained). We chose our net tangible asset threshold of $5,000,001 to ensure that we would avoid being subject to Rule
419 promulgated under the Securities Act of 1933, as amended. However, if we seek to consummate an initial business combination with a target business
that imposes any type of working capital closing condition or requires us to have a minimum amount of funds available from the trust account upon
consummation of such initial business combination, our net tangible asset threshold may limit our ability to consummate such initial business
combination (as we may be required to have a lesser number of shares redeemed) and may force us to seek third party financing which may not be
available on terms acceptable to us or at all. As a result, we may not be able to consummate such initial business combination and we may not be able
to locate another suitable target within the applicable time period, if at all.
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Notwithstanding the foregoing, a public shareholder, together with any affiliate of his or any other person with whom he is acting in concert
or as a group (as defined in Section 13(d)(3) of the Exchange Act) will be restricted from seeking redemption rights with respect to 15% or
more of the ordinary shares sold in this offering without our prior written consent. We believe this restriction will prevent an individual shareholder
or group from accumulating large blocks of shares before the vote held to approve a proposed business combination and attempt to use the
redemption right as a means to
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force
us or our management to purchase its shares at a significant premium to the then current market price. By limiting a shareholders ability to
redeem no more than 15% of the ordinary shares sold in this offering, we believe we have limited the ability of a small group of shareholders to
unreasonably attempt to block a transaction, which is favored by our other public shareholders.
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Whether we elect to effectuate our initial business combination via shareholder vote or tender offer, we will require public shareholders,
whether they are a record holder or hold their shares in street name, to either tender their certificates to our transfer agent at any time
through the vote on the business combination or to deliver their shares to the transfer agent electronically using Depository Trust Companys DWAC
(Deposit/Withdrawal At Custodian) System, at the holders option. The requirement for physical or electronic delivery prior to the meeting ensures
that a holders election to redeem his shares is irrevocable once the business combination is approved. There is a nominal cost associated with
this tendering process and the act of certificating the shares or delivering them through the DWAC system. The transfer agent will typically charge the
tendering broker $45 and it would be up to the broker whether or not to pass this cost on to the redeeming holder. However, this fee would be incurred
regardless of whether or not we require holders to deliver their shares prior to the vote on the business combination in order to exercise redemption
rights. This is because a holder would need to deliver shares to exercise redemption rights regardless of the timing of when such delivery must be
effectuated. However, in the event the proposed business combination is not consummated, this may result in an increased cost to
shareholders.
|
|||||
Ability to
extend time to complete business combination
|
If we
anticipate that we may not be able to consummate our initial business combination within 18 months, we may extend the period of time to consummate a
business combination twice, each by an additional three months, for an aggregate of six additional months as described in this prospectus. In order to
extend the time available for us to consummate our initial business combination, our sponsor, or its affiliates or designees, must deposit an aggregate
of $150,000 at $0.025 per public share (or $172,500 at $0.025 per public share if the overallotment is exercised in full) into the trust account prior
to the applicable deadline for each three month extension. Neither our sponsor, nor any of its affiliates or designees, is obligated to fund the trust
account to extend the time for us to complete our initial business combination.
|
Liquidation
if no business combination
|
If we
are unable to complete our initial business combination within 18 months from the closing of this offering (or up to 24 months if extended), we will
(i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than five business days thereafter,
redeem 100% of the outstanding public shares which redemption will completely extinguish public shareholders rights as shareholders (including
the right to receive further liquidation distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such
redemption, subject to the approval of our remaining holders of ordinary shares and our board of directors, proceed to commence a voluntary liquidation
and thereby a formal dissolution of the company, subject (in the case of (ii) and (iii) above) to our obligations to provide for claims of creditors
and the requirements of applicable law.
|
|||||
|
In
connection with our redemption of 100% of our outstanding public shares for a portion of the funds held in the trust account, each holder will receive
a full pro rata portion of the amount then in the trust account (less up to $20,000 to pay dissolution costs), plus any pro rata interest earned on the
funds held in the trust account and not previously released to us for our working capital requirements or necessary to pay our taxes payable on such
funds. Holders of rights or warrants will receive no proceeds in connection with the liquidation with respect to such rights or warrants, which will
expire worthless.
|
|||||
|
We
may not have funds sufficient to pay or provide for all creditors claims. Although we will seek to have all third parties (including any vendors
or other entities we engage after this offering) and any prospective target businesses enter into valid and enforceable agreements with us waiving any
right, title, interest or claim of any kind in or to any monies held in the trust account, there is no guarantee that they will execute such
agreements. There is also no guarantee that the third parties would not challenge the enforceability of these waivers and bring claims against the
trust account for monies owed them.
|
|||||
|
The
holders of the founder shares and private units will not participate in any redemption distribution with respect to their founder shares, private
shares, private rights or private warrants.
|
|||||
|
If we
are unable to conclude our initial business combination and we expend all of the net proceeds of this offering not deposited in the trust account,
without taking into account any interest earned on the trust account, we expect that the initial per-share redemption price will be approximately
$10.05. The proceeds deposited in the
|
|
trust
account could, however, become subject to claims of our creditors that are in preference to the claims of our shareholders. In addition, if we are
forced to file a bankruptcy case or an involuntary bankruptcy case is filed against us that is not dismissed, the proceeds held in the trust account
could be subject to applicable bankruptcy law, and may be included in our bankruptcy estate and subject to the claims of third parties with priority
over the claims of our shareholders. Therefore, the actual per-share redemption price may be less than approximately $10.05.
|
|||||
|
We
will pay the costs of any subsequent liquidation from our remaining assets outside of the trust account together with up to $20,000 of interest earned
on the funds held in the trust account that is available to us for such purposes. If such funds are insufficient, Ms. Winnie Lai Ling Ng, an affiliate
of our sponsor, has agreed to pay the funds necessary to complete such liquidation and has agreed not to seek repayment for such expenses. We currently
do not anticipate that such funds will be insufficient.
|
June 10, 2014
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Actual
|
As Adjusted
(1)(2)(3)
|
||||||||||
Balance
Sheet Data:
|
|||||||||||
Working
capital (deficiency)
|
$ | (58,012 | ) | $ | 60,869,704 | ||||||
Total assets
|
$ | 152,555 | $ | 60,869,704 | |||||||
Total
liabilities
|
$ | 132,951 | $ | | |||||||
Value of
ordinary shares which may be redeemed for cash
|
$ | | $ | 55,299,994 | |||||||
Shareholders equity
|
$ | 19,604 | $ | 5,569,710 |
(1)
|
Includes $3,200,000 we will receive from the sale of the private units. |
(2)
|
The as adjusted working capital and total assets is derived by adding total shareholders equity and the value of the ordinary shares, which may be redeemed for cash. |
(3)
|
The as adjusted value of ordinary shares which may be redeemed for cash is derived by taking 5,502,487 ordinary shares which may be redeemed, representing the maximum number of shares that may be redeemed while maintaining at least $5,000,001 in net tangible assets after the offering, multiplied by a redemption price of $10.05. |
|
may significantly dilute the equity interest of investors in this offering, who will not have pre-emption rights in respect of such an issuance; |
|
may subordinate the rights of holders of ordinary shares if preferred shares are issued with rights created by amendment of our memorandum and articles of association by resolution of the directors senior to those afforded our ordinary shares; |
|
could cause a change in control if a substantial number of ordinary shares is issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and could result in the resignation or removal of our present officers and directors; and |
|
may adversely affect prevailing market prices for our units, ordinary shares and/or rights. |
|
default and foreclosure on our assets if our operating revenues after our initial business combination are insufficient to repay our debt obligations; |
|
acceleration of our obligations to repay the indebtedness even if we make all principal and interest payments when due if we breach certain covenants that require the maintenance of certain financial ratios or reserves without a waiver or renegotiation of that covenant; |
|
our immediate payment of all principal and accrued interest, if any, if the debt security is payable on demand; |
|
our inability to obtain necessary additional financing if the debt security contains covenants restricting our ability to obtain such financing while the debt security is outstanding; |
|
our inability to pay dividends on our ordinary shares; |
|
using a substantial portion of our cash flow to pay principal and interest on our debt, which will reduce the funds available for dividends on our ordinary shares if declared, expenses, capital expenditures, acquisitions and other general corporate purposes; |
|
limitations on our flexibility in planning for and reacting to changes in our business and in the industry in which we operate; |
|
increased vulnerability to adverse changes in general economic, industry and competitive conditions and adverse changes in government regulation; and |
|
limitations on our ability to borrow additional amounts for expenses, capital expenditures, acquisitions, debt service requirements, execution of our strategy and other purposes and other disadvantages compared to our competitors who have less debt. |
|
solely dependent upon the performance of a single business, property or asset, or |
|
dependent upon the development or market acceptance of a single or limited number of products, processes or services. |
|
the history and prospects of companies whose principal business is the acquisition of other companies; |
|
prior offerings of those companies; |
|
our prospects for acquiring an operating business at attractive values; |
|
a review of debt to equity ratios in leveraged transactions; |
|
our capital structure; |
|
an assessment of our management and their experience in identifying operating companies; |
|
general conditions of the securities markets at the time of this offering; and |
|
other factors as were deemed relevant. |
|
a limited availability of market quotations for our securities; |
|
a reduced liquidity with respect to our securities; |
|
a determination that our ordinary shares are a penny stock which will require brokers trading in our ordinary shares to adhere to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market for our ordinary shares; |
|
a limited amount of news and analyst coverage for our company; and |
|
a decreased ability to issue additional securities or obtain additional financing in the future. |
|
to recognize or enforce against us judgments of courts of the United States based on certain civil liability provisions of U.S. securities laws where that liability is in respect of penalties, taxes, fines or similar fiscal or revenue obligations of the company; and |
|
to impose liabilities against us, in original actions brought in the British Virgin Islands, based on certain civil liability provisions of U.S. securities laws that are penal in nature. |
|
the U.S. court issuing the judgment had jurisdiction in the matter and the company either submitted to such jurisdiction or was resident or carrying on business within such jurisdiction and was duly served with process; |
|
is final and for a liquidated sum; |
|
the judgment given by the U.S. court was not in respect of penalties, taxes, fines or similar fiscal or revenue obligations of the company; |
|
in obtaining judgment there was no fraud on the part of the person in whose favor judgment was given or on the part of the court; |
|
recognition or enforcement of the judgment would not be contrary to public policy in the British Virgin Islands; and |
|
the proceedings pursuant to which judgment was obtained were not contrary to natural justice. |
|
rules and regulations or currency redemption or corporate withholding taxes on individuals; |
|
laws governing the manner in which future business combinations may be effected; |
|
exchange listing and/or delisting requirements; |
|
tariffs and trade barriers; |
|
regulations related to customs and import/export matters; |
|
longer payment cycles; |
|
tax issues, such as tax law changes and variations in tax laws as compared to the United States; |
|
currency fluctuations and exchange controls; |
|
rates of inflation; |
|
challenges in collecting accounts receivable; |
|
cultural and language differences; |
|
employment regulations; |
|
crime, strikes, riots, civil disturbances, terrorist attacks and wars; and |
|
deterioration of political relations with the United States. We may not be able to adequately address these additional risks. If we were unable to do so, our operations might suffer. |
|
levying fines; |
|
revoking our business and other licenses; |
|
requiring that we restructure our ownership or operations; and |
|
requiring that we discontinue any portion or all of our business. |
|
revoke the business and operating licenses of the potential future target business; |
|
confiscate relevant income and impose fines and other penalties; |
|
discontinue or restrict the operations of the potential future target business; |
|
require us or potential future target business to restructure the relevant ownership structure or operations; |
|
restrict or prohibit our use of the proceeds of this offering to finance the target businesses and its operations; |
|
impose conditions or requirements with which we or potential future target business may not be able to comply; or |
|
require us to discontinue a portion or all of our business. |
|
our ability to complete our initial business combination; |
|
our success in retaining or recruiting, or changes required in, our officers, key employees or directors following our initial business combination; |
|
our officers and directors allocating their time to other businesses and potentially having conflicts of interest with our business or in approving our initial business combination, as a result of which they would then receive expense reimbursements; |
|
our potential ability to obtain additional financing to complete our initial business combination; |
|
our pool of prospective target businesses; |
|
the ability of our officers and directors to generate a number of potential investment opportunities; |
|
failure to list or delisting of our securities from the Nasdaq Capital Market or an inability to have our securities listed on the Nasdaq Capital Market following a business combination; |
|
our public securities potential liquidity and trading; |
|
the lack of a market for our securities; or |
|
our financial performance following this offering. |
Without
Over-Allotment Option |
Over-Allotment
Option Exercised |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Gross
proceeds
|
||||||||||
From offering
|
$ | 60,000,000 | $ | 69,000,000 | ||||||
From private
placement
|
3,200,000 | 3,537,500 | ||||||||
Total gross
proceeds
|
63,200,000 | 72,537,500 | ||||||||
Offering
expenses
(1)
|
||||||||||
Underwriting
discount (3.25% of gross proceeds from offering)
|
1,950,000 | (2) | 2,242,500 | (2) | ||||||
Legal fees
and expenses
(3)
|
170,000 | 170,000 | ||||||||
Nasdaq
listing fee
|
50,000 | 50,000 | ||||||||
Printing and
engraving expenses
|
45,000 | 45,000 | ||||||||
Accounting
fees and expenses
|
30,000 | 30,000 | ||||||||
FINRA filing
fee
|
14,990 | 14,990 | ||||||||
D&O
insurance
|
75,000 | 75,000 | ||||||||
SEC
registration fee
|
8,887 | 8,887 | ||||||||
Miscellaneous
expenses
|
6,123 | 6,123 | ||||||||
Total
offering expenses
|
2,350,000 | 2,642,500 | ||||||||
Net
proceeds
|
||||||||||
Held in the
trust account
(4)
|
60,300,000 | 69,345,000 | ||||||||
Not held in
the trust account
|
550,000 | 550,000 | ||||||||
Total net
proceeds
|
$ | 60,850,000 | $ | 69,895,000 | ||||||
Use of net
proceeds not held in the trust account
(4)(5)
|
||||||||||
Legal,
accounting and other third party expenses attendant to the search for target businesses and to the due diligence investigation, structuring and
negotiation of our initial business combination
|
$ | 150,000 | 27.3 | % | ||||||
Legal and
accounting fees relating to SEC reporting obligations
|
100,000 | 18.2 | % | |||||||
Nasdaq
continued listing fees
|
55,000 | 10 | % | |||||||
Payment of
administrative fee ($10,000 per month for up to 18 months)
|
180,000 | 32.7 | % | |||||||
Working
capital to cover miscellaneous expenses, general corporate purposes, liquidation obligations and reserves
|
65,000 | 11.8 | % | |||||||
Total
|
$ | 550,000 | 100.0 | % |
(1)
|
A portion of the offering expenses, including the SEC registration fee, the FINRA filing fee, the non-refundable portion of the Nasdaq listing fee and a portion of the legal and audit fees, have been paid from the funds we received from the sponsor. These funds will be repaid out of the proceeds of this offering available to us. |
(2)
|
No discounts or commissions will be paid with respect to the purchase of the private units. |
(3)
|
Our counsel has agreed to defer legal fees for services provided in connection with the offering in the amount of $100,000. Such deferred legal fees will be payable by us only upon the successful completion of our initial business combination. In the event we do not consummate our initial business combination the deferred legal fee will not be paid. Accordingly, the deferred legal fee is not reflected as a cost of this offering in the above Estimated Offering Expenses |
(4)
|
Upon closing of the initial business combination, the funds held in the trust account may, but need not, be used to pay our expenses relating to acquiring a target business, including a fee payable to EarlyBirdCapital in an amount equal to 4.0% of the total gross proceeds raised in the offering described below. |
(5)
|
Does not include any interest earned on the funds held in the trust account that may be available to us as described in this prospectus. |
Public
offering price
|
$ | 9.09 | ||||||||
Net tangible
book value before this offering
|
$ | (0.03 | ) | |||||||
Increase
attributable to new investors and private sales
|
1.92 | |||||||||
Pro forma net
tangible book value after this offering
|
1.89 | |||||||||
Dilution to
new investors
|
$ | 7.20 | ||||||||
Percentage of
dilution to new investors
|
79.2 | % |
Shares Purchased
|
Total Consideration
|
Average
Price per Share |
|||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Number
|
Percentage
|
Amount
|
Percentage
|
||||||||||||||||||||
Initial
stockholders (founder shares)
|
1,500,000 | (1) | 17.75 | % | $ | 25,000 | 0.04 | % | $ | 0.02 | |||||||||||||
Placement
shares
|
352,000 | (2) | 4.16 | % | 3,200,000 | 5.06 | % | $ | 9.09 | ||||||||||||||
Public
stockholders
|
6,600,000 | (3) | 78.09 | % | 60,000,000 | 94.90 | % | $ | 9.09 | ||||||||||||||
Total
|
8,452,000 | 100.00 | % | $ | 63,225,000 | 100.00 | % |
(1)
|
Assumes the over-allotment option has not been exercised and an aggregate of 225,000 founder shares have been forfeited by our sponsor as a result thereof. |
(2)
|
Assumes the issuance of an additional 32,000 shares underlying the private rights. |
(3)
|
Assumes the issuance of an additional 600,000 public shares underlying the public rights. |
Numerator:
|
||||||
Net tangible
book value before the offering
|
$ | (58,012 | ) | |||
Net proceeds
from this offering and private placement of private units
|
60,850,000 | |||||
Plus:
Offering costs accrued for and paid in advance, excluded from tangible book value before this offering
|
77,616 | |||||
Plus:
Proceeds from sale of unit purchase option to underwriters
|
100 | |||||
Less:
Proceeds held in the trust account subject to redemption
|
(55,299,994 | ) | ||||
|
$ | 5,569,710 | ||||
Denominator:
|
||||||
Ordinary
shares outstanding prior to this offering
|
1,500,000 | (1) | ||||
Ordinary
shares to be sold in this offering
|
6,000,000 | |||||
Ordinary
shares underlying the rights to be sold in this offering
|
600,000 | |||||
Ordinary
shares to be sold in private placement
|
320,000 | |||||
Ordinary
shares underlying the rights to be sold in private placement
|
32,000 | |||||
Less: Shares
subject to redemption
|
(5,502,487 | ) | ||||
|
2,949,513 |
(1)
|
Assumes that the underwriters over-allotment option has not been exercised and an aggregate of 225,000 founder shares have been forfeited by our sponsor as a result thereof. |
As at June 10, 2014
|
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Actual
|
As Adjusted
(1)
|
||||||||||
Amount
payable to related party
(2)
|
$ | 125,000 | $ | | |||||||
Ordinary
share, no par value, -0- and 5,502,487 shares which are subject to possible redemption
|
| 55,299,994 | (4) | ||||||||
Shareholders equity:
|
|||||||||||
Ordinary
share, no par value, unlimited shares authorized; 1,725,000 shares issued and outstanding, actual; 2,317,513 shares
(3)
issued and
outstanding (excluding 5,502,487 shares subject to possible redemption), as adjusted
|
25,000 | 5,575,106 | |||||||||
Additional
paid-in capital
|
| | |||||||||
Deficit
accumulated during the development stage
|
(5,396 | ) | (5,396 | ) | |||||||
Total
shareholders equity:
|
$ | 19,604 | $ | 5,569,710 | |||||||
Total
capitalization
|
$ | 144,604 | $ | 60,869,704 | (5) |
(1)
|
Includes $3,200,000 we will receive from the sale of the private units. Assumes the over-allotment option has not been exercised. |
(2)
|
Payable to related party is an advance of $125,000. The advance is non-interest bearing and is payable on demand. |
(3)
|
Assumes the over-allotment option has not been exercised and an aggregate of 225,000 founder shares have been forfeited by our sponsor as a result thereof. |
(4)
|
Derived by taking 5,502,487 ordinary shares, which may be redeemed, representing the maximum number of shares that may be redeemed while maintaining at least $5,000,001 in net tangible assets after the offering, multiplied by a redemption price of $10.05. |
(5)
|
Derived by adding total shareholders equity and the value of the ordinary share, which may be redeemed for cash. |
|
may significantly dilute the equity interest of investors in this offering who would not have pre-emption rights in respect of any such issue; |
|
may subordinate the rights of holders of ordinary shares if the rights, preferences, designations and limitations attaching to the preferred shares are created by amendment of our memorandum and articles of association by resolution of the board of directors and preferred shares are issued with rights senior to those afforded our ordinary shares; |
|
could cause a change in control if a substantial number of ordinary shares is issued, which may affect, among other things, our ability to use our net operating loss carry forwards, if any, and could result in the resignation or removal of our present officers and directors; |
|
may have the effect of delaying or preventing a change of control of us by diluting the share ownership or voting rights or a person seeking to obtain control of us; and |
|
may adversely affect prevailing market prices for our ordinary shares and/or rights. |
|
default and foreclosure on our assets if our operating revenues after our initial business combination are insufficient to repay our debt obligations; |
|
acceleration of our obligations to repay the indebtedness even if we make all principal and interest payments when due if we breach certain covenants that require the maintenance of certain financial ratios or reserves without a waiver or renegotiation of that covenant; |
|
our immediate payment of all principal and accrued interest, if any, if the debt security is payable on demand; |
|
our inability to obtain necessary additional financing if the debt security contains covenants restricting our ability to obtain such financing while the debt security is outstanding; |
|
our inability to pay dividends on our ordinary shares; |
|
using a substantial portion of our cash flow to pay principal and interest on our debt, which will reduce the funds available for dividends on our ordinary shares if declared, expenses, capital expenditures, acquisitions and other general corporate purposes; |
|
limitations on our flexibility in planning for and reacting to changes in our business and in the industry in which we operate; |
|
increased vulnerability to adverse changes in general economic, industry and competitive conditions and adverse changes in government regulation; and |
|
limitations on our ability to borrow additional amounts for expenses, capital expenditures, acquisitions, debt service requirements, execution of our strategy and other purposes and other disadvantages compared to our competitors who have less debt. |
|
$150,000 of expenses for the search for target businesses and for the legal, accounting and other third-party expenses attendant to the due diligence investigations, structuring and negotiating of our initial business combination; |
|
$180,000 (or $240,000 if the time to complete a business combination has been extended) to our sponsor or an affiliate of our sponsor for office space, utilities and secretarial and administrative services commencing on the date that our securities are first listed on Nasdaq capital market; |
|
$100,000 of expenses in legal and accounting fees relating to our SEC reporting obligations; |
|
$55,000 of expenses in continued Nasdaq listing fees; |
|
$65,000 (or $5,000 if the time to complete a business combination has been extended) for general working capital that will be used for miscellaneous expenses, liquidation obligations and reserves, including director and officer liability insurance premiums. |
|
staffing for financial, accounting and external reporting areas, including segregation of duties; |
|
reconciliation of accounts; |
|
proper recording of expenses and liabilities in the period to which they relate; |
|
evidence of internal review and approval of accounting transactions; |
|
documentation of processes, assumptions and conclusions underlying significant estimates; and |
|
documentation of accounting policies and procedures. |
|
Middle-Market Growth Business . We will primarily seek to acquire one or more growth businesses with a total enterprise value in excess of $300,000,000. We believe that there are a substantial number of potential target businesses within this valuation range that can benefit from new capital for scalable operations to yield significant revenue and earnings growth. We currently do not intend to acquire either a start-up company or a company with negative cash flow. |
|
Companies with Opportunity to Strengthen Management and Add Value . We will seek to acquire one or more businesses that provide a platform for the existing management team to leverage the experience of our management team. We believe that the operating expertise of our management team is well suited to complement and, if beneficial, replace the targets management team. |
|
Companies in Business Segments that are Strategically Significant to China . We will seek to acquire those businesses with strong technological know-how, distribution networks and/or business practices in economic sectors that are currently experiencing significant Asia/China outbound investing. Such sectors include: Energy and resources, food processing, retail, manufacturing, and high technology business segments. |
|
Business with Revenue and Earnings Growth Potential We will seek to acquire one or more businesses that have the potential for significant revenue and earnings growth through a combination of brand and new product development, increased production capacity, expense reduction and synergistic follow-on acquisitions resulting in increased operating leverage. |
|
Companies with Potential for Strong Free Cash Flow Generation We will seek to acquire one or more businesses that have the potential to generate strong, stable and increasing free cash flow. We intend to focus on one or more businesses that have predictable revenue streams and definable low working capital and capital expenditure requirements. We may also seek to prudently leverage this cash flow in order to enhance shareholder value. |
|
Benefit from Being a Public Company We intend to only acquire a business or businesses that will benefit from being publicly traded and which can effectively utilize access to broader sources of capital and a public profile that are associated with being a publicly traded company. |
|
Established Deal Sourcing Network |
|
Through our management team, we believe we have contacts and sources from which to generate acquisition opportunities and possibly seek complimentary follow-on business arrangements. These contacts and sources include those in government, private and public companies around the world, private equity and venture capital funds, investment bankers, attorneys and accountants. |
|
Unique positioning |
|
We are a management team with significant experience in cross-border business between Asia (with an emphasis on China) and the U.S. We understand the cultural, business and economic differences and opportunities that will allow us to negotiate a transaction. For Asia, and more specifically China, based companies, we provide the ability to help them bridge their overseas expansion in term of both capital raising and business activity. In addition, if we find a very attractive acquisition target outside of the Asia/China region, we believe our deep experience and relationships in Asia/China would enhance the value of such a business through our introductions to identified Asian/Chinese business partners. |
|
Status as a Public Company |
|
We believe our structure will make us an attractive business combination partner to prospective target businesses. As a public company, we will offer a target business an alternative to the traditional initial public offering. We believe that target businesses will favor this alternative, which we believe is less expensive, while offering greater certainty of execution than the traditional initial public offering. During an initial public offering, there are typically expenses incurred in marketing, which would be costlier than a business combination with us. Furthermore, once a proposed business combination is approved by our shareholders and the transaction is consummated, the target business will have effectively become public, whereas an initial public offering is always subject to the underwriters ability to complete the offering, as well as general market conditions that could prevent the offering from occurring. Once public, we believe the target business would have greater access to capital and additional means of creating management incentives that are better aligned with shareholders interests than it would as a private company. It can offer further benefits by augmenting a companys profile among potential new customers and vendors and aid in attracting talented management staffs. |
|
Strong Financial Position and Flexibility |
|
With a trust account initially in the amount of $60,300,000 (or $69,345,000 if the over-allotment option is exercised in full) and a public market for our ordinary shares, we can offer a target business a variety of options to facilitate a business combination and fund future expansion and growth of its business. Because we are able to consummate a business combination using the cash proceeds from this offering, our share capital, debt or a combination of the foregoing, we have the flexibility to use an efficient structure allowing us to tailor the consideration to be paid to the target business to address the needs of the parties. However, if a business combination requires us to use substantially all of our cash to pay for the purchase price, we may need to arrange third party financing to help fund our business combination. Since we have no specific business combination under consideration, we have not taken any steps to secure third party financing. Accordingly, our flexibility in structuring a business combination may be subject to these constraints. |
|
Offering Structure |
|
Unlike other blank check companies that sell units comprised of shares and warrants each to purchase a full share in their initial public offerings, we are selling units comprised of shares, warrants to purchase one-half of one share and rights automatically entitling the holder to receive one-tenth of a share upon consummation of our initial business combination. Our management believes that investors in similarly structured blank check offerings, and those likely to invest in this offering, have come to expect the units of such companies to include one share and another security which would allow the holders to acquire additional shares. Without the ability to acquire such additional shares, our management believes the investors would not be willing to purchase units in such companies initial public offerings. Accordingly, because the number of shares ordinarily issuable upon exercise of the warrants found in the typical structure of other blank check initial public offerings is lessened in our case (since such warrants most often entitle the holder to receive a full share as opposed to the one-tenth of a share the rights entitle a holder to receive and the one-half of one share that each warrantholder is entitled to purchase), although not completely eliminated, our management believes we will be viewed more favorably by potential target companies when determining which company to engage in a business combination with. However, our management may be incorrect in this belief. |
|
Our exercise of effective control over the target company; |
|
We will assume economic benefits and risk of losses of the target company that are substantially similar to full ownership; |
|
The shareholders of the target company would grant us a pledged interest in all of the issued and outstanding interests of the target company, including the right to vote such shares, as security for the performance of the target companys obligations under the contractual arrangements; |
|
The shareholders of the target company would grant us an irrevocable proxy for the maximum period permitted by law, to vote the shareholders shares in the target company in such manner and for or against such proposals as we may determine; and |
|
We, or our designee, would have an exclusive option to purchase all or part of the equity interests in the target company owned by the Chinese residents whom we designate, or all or part of the assets of the target company, in each case when and to the extent permitted by Chinese regulations. |
|
subject us to negative economic, competitive and regulatory developments, any or all of which may have a substantial adverse impact on the particular industry in which we operate after our initial business combination, and |
|
cause us to depend on the marketing and sale of a single product or limited number of products or services. |
Type of Transaction
|
Whether Shareholder
Approval is Required |
|||||
---|---|---|---|---|---|---|
Purchase of
assets
|
No
|
|||||
Purchase of
stock of target not involving a merger with the company
|
No
|
|||||
Merger of
target with a subsidiary of the company
|
No
|
|||||
Merger of the
company with a target
|
Yes
|
|||||
Entering into
contractual agreements with a target to obtain control
|
No
|
|
conduct the redemptions in conjunction with a proxy solicitation pursuant to Regulation 14A of the Exchange Act, which regulates the solicitation of proxies, and not pursuant to the tender offer rules, and |
|
file proxy materials with the SEC. |
|
offer to redeem our public shares pursuant to Rule 13e-4 and Regulation 14E of the Exchange Act, which regulate issuer tender offers, and |
|
file tender offer documents with the SEC prior to consummating our initial business combination which will contain substantially the same financial and other information about the initial business |
|
combination and the redemption rights as is required under Regulation 14A of the Exchange Act, which regulates the solicitation of proxies, and we will not be permitted to consummate our initial business combination until the expiration of the tender offer period. |
Redemptions in
Connection with our Initial Business Combination |
Redemptions if we fail to Consummate
our Initial Business Combination |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Calculation
of redemption price
|
Redemptions at the time of our initial business combination may be made pursuant to a tender offer or in connection with a shareholder vote.
The redemption price will be the same whether we conduct redemptions pursuant to a tender offer or in connection with a shareholder vote. In either
case, our public shareholders may redeem their public shares for cash equal to the aggregate amount then on deposit in the trust account (which is
initially anticipated to be $10.05 per share, whether or not the underwriters over-allotment option is exercised in full), including interest
less taxes payable, divided by the number of then outstanding public shares, subject to the limitation that no redemptions will take place if all of
the redemptions would cause our net tangible assets to be less than $5,000,001 and any limitations (including but not limited to cash requirements)
agreed to in connection with the negotiation of terms of a proposed business combination.
|
If we
are unable to consummate our initial business combination within 18 (or 24 if extended) months from the closing of this offering, we will redeem all
public shares at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account (which is initially anticipated
to be $10.05 per share, whether or not the underwriters over-allotment option is exercised in full), including interest less taxes payable and
less up to $20,000of such net interest to pay dissolution expenses, divided by the number of then outstanding public shares.
|
||||||||
Impact to
remaining shareholders
|
The
redemptions in connection with our initial business combination will reduce the book value per share for our remaining shareholders, who will bear the
burden of the deferred underwriting commissions and taxes payable.
|
The
redemption of our public shares if we fail to consummate our initial business combination will reduce the book value per share for the shares held by
our sponsor, who will be our only remaining shareholders after such redemptions.
|
Terms of Our Offering
|
Terms Under a Rule 419 Offering
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Escrow of
offering proceeds
|
$60,300,000 of the net offering proceeds, which includes the $3,200,000 net proceeds from the sale of the private units ($69,345,000,
including $3,537,500 net proceeds from the sale of the private units, if the underwriters over-allotment option is exercised in full), will be
deposited into a trust account in the United States at JPMorgan Chase Bank, N.A., maintained by Continental Stock Transfer & Trust Company
acting as trustee.
|
Approximately $52,245,000 of the offering proceeds, representing the gross proceeds of this offering, less allowable underwriting commissions,
expenses and company deductions under Rule 419 would be required to be deposited into either an escrow account with an insured depositary institution
or in a separate bank account established by a broker- dealer in which the broker-dealer acts as trustee for persons having the beneficial interests in
the account.
|
||||||||
Investment
of net proceeds
|
$60,300,000 of the net offering proceeds, which includes the $3,200,000 net proceeds from the sale of the private units ($69,345,000,
including $3,537,500 net proceeds from the sale of the private units, if the underwriters over-allotment option is exercised in full) held in
trust will be invested only in U.S. government treasury bills, notes or bonds with a maturity of 180 days or less or in money market funds meeting
certain conditions under Rule 2a-7 under the Investment Company Act and which invest solely in U.S. Treasuries.
|
Proceeds could be invested only in specified securities such as a money market fund meeting conditions of the Investment Company Act or in
securities that are direct obligations of, or obligations guaranteed as to principal or interest by, the United States.
|
||||||||
Receipt of
interest on escrowed funds
|
Interest on proceeds from the trust account to be paid to shareholders is reduced by (i) any taxes paid or payable and then (ii) any interest,
that can be used for working capital purposes, and (iii) in the event of our liquidation for failure to consummate our initial business combination
within the allotted time, up to $20,000 of net interest that may be released to us should we have no or insufficient working capital to fund the costs
and expenses of our dissolution and liquidation.
|
Interest on funds in escrow account would be held for the sole benefit of investors, unless and only after the funds held in escrow were
released to us in connection with our consummation of a business combination.
|
||||||||
Limitation
on fair value or net assets of target business
|
Our
initial business combination must be with one or more target businesses or assets having an aggregate fair market value of at least 80% of the value of
the trust account (excluding any taxes) at the time of the agreement to enter into such initial business combination.
|
The
fair value or net assets of a target business must represent at least 80% of the maximum offering proceeds.
|
Terms of Our Offering
|
Terms Under a Rule 419 Offering
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Trading of
securities issued
|
The
units will begin trading on or promptly after the date of this prospectus. The ordinary shares, rights and warrants comprising the units will begin to
trade separately on the 90
th
day after the date of this prospectus unless EarlyBirdCapital informs us of its decision to allow earlier
separate trading (based upon its assessment of the relative strengths of the securities markets and small capitalization companies in general, and the
trading pattern of, and demand for, our securities in particular), provided we have filed with the SEC a Current Report on Form 8-K, which includes an
audited balance sheet reflecting our receipt of the proceeds of this offering.
|
No
trading of the units or the underlying ordinary shares, warrants or rights would be permitted until the completion of a business combination. During
this period, the securities would be held in the escrow or trust account.
|
||||||||
Exercise of
the warrants
|
The
warrants cannot be exercised until the completion of a business combination and, accordingly, will be exercised only after the trust account has been
terminated and distributed.
|
The
warrants could be exercised prior to the completion of a business combination, but securities received and cash paid in connection with the exercise
would be deposited in the escrow or trust account.
|
||||||||
Election to
remain an investor
|
We
will provide our public shareholders with the opportunity to redeem their public shares for cash equal to their pro rata share of the aggregate amount
then on deposit in the trust account, including interest less taxes payable, upon the consummation of our initial business combination, subject to the
limitations described herein and any limitations (including but not limited to cash requirements) agreed to in connection with the negotiation of terms
of a proposed business combination. If we seek shareholder approval, we will consummate our initial business combination only if a majority of the
outstanding ordinary shares voted are voted in favor of the business combination. Each public shareholder may elect to redeem their public shares
irrespective of whether they vote for or against the proposed transaction. In such case, we will, like many blank check companies, offer to redeem
shares in conjunction with a proxy solicitation pursuant to the proxy rules and not pursuant to the tender offer rules.
|
A
prospectus containing information pertaining to the business combination required by the SEC would be sent to each investor. Each investor would be
given the opportunity to notify the company in writing, within a period of no less than 20 business days and no more than 45 business days from the
effective date of a post-effective amendment to the companys registration statement, to decide if he, she or it elects to remain a shareholder of
the company or require the return of his, her or its investment. If the company has not received the notification by the end of the 45
th
business day, funds and interest or dividends, if any, held in the trust or escrow account are automatically returned to the shareholder. Unless a
sufficient number of investors elect to remain investors, all funds on deposit in the escrow account must be returned to all of the investors and none
of the securities are issued.
|
Terms of Our Offering
|
Terms Under a Rule 419 Offering
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Election to
remain an investor (continued)
|
If we
do not decide to hold a shareholder vote (so long as it is not required by the Companies Act or Nasdaq Capital Market), we will, pursuant to our
memorandum and articles of association, offer to redeem our public shares pursuant to the tender offer rules of the SEC and the terms of the proposed
business combination and file tender offer documents with the SEC which will contain substantially the same financial and other information about the
initial business combination and the redemption rights as is required under the SECs proxy rules.
|
|||||||||
Business
combination deadline
|
If we
are unable to complete our initial business combination by 18 (or 24 if extended) months from the closing of this offering, we will, as soon as
reasonably possible but not more than five business days thereafter, distribute the aggregate amount then on deposit in the trust account (less up to
$20,000of the net interest earned thereon to pay dissolution expenses), pro rata to our public shareholders by way of redemption and cease all
operations except for the purposes of winding up of our affairs. This redemption of public shareholders from the trust account shall be done
automatically by function of our memorandum and articles of association and prior to any voluntary winding up.
|
If an
acquisition has not been consummated within 18 months after the effective date of the companys registration statement, funds held in the trust or
escrow account are returned to investors.
|
||||||||
Release of
funds
|
Except for interest earned on the funds in the trust account that may be released to us to pay our tax obligations or that we may need for our
working capital requirements that may be released to us from the interest earned on the trust account balance, the proceeds held in the trust account
will not be released until the earlier of the completion of our initial business combination and the redemption of public shareholders upon failure to
effect our initial business combination within the allotted time.
|
The
proceeds held in the escrow account are not released until the earlier of the completion of a business combination and the failure to effect our
initial business combination within the allotted time.
|
Terms of Our Offering
|
Terms of Many Blank
Check Offerings |
Impact on Whether a
Particular Business Combination is Completed |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Requirement
to conduct a tender offer or hold a shareholder vote
|
We
will provide our shareholders with the opportunity to redeem their ordinary shares upon the consummation of our initial business combination on the
terms described in this prospectus. We intend to seek shareholder approval in connection with our initial business combination. In such case, we will
conduct the redemptions in conjunction with a proxy solicitation pursuant to Regulation 14A of the Exchange Act, which regulates the solicitation of
proxies, and not pursuant to the tender offer rules, and file proxy materials with the SEC.
If shareholder approval is not required by the Companies Act or Nasdaq Capital Market in connection with our initial business combination, we may, for business or legal reasons, decide to conduct these redemptions pursuant to the tender offer rules without filing a proxy statement with the SEC and without conducting a shareholder vote to approve our initial business combination. |
Many
blank check companies are required to file a proxy statement with the SEC and hold a shareholder vote to approve their initial business combination
regardless of whether such a vote is required by law. These blank check companies may not consummate our initial business combination if the majority
of the companys public shares voted are voted against a proposed business combination.
|
Our
ability to consummate our initial business combination without conducting a shareholder vote in the event that a shareholder vote is not required by
law may increase the likelihood that we will be able to complete our initial business combination and decrease the ability of public shareholders to
affect whether or not a particular business combination is completed.
|
|||||||||||
Required
shareholder vote if we hold a shareholder vote
|
If we
seek shareholder approval in conjunction with the consummation of our initial business combination, a majority of all shares voted that are entitled to
vote are required to approve the business combination.
|
Many
blank check companies require that majority of the public shares that are voted and entitled to vote approve the business
combination.
|
Our
ability to consummate our initial business combination by allowing all of our shareholders to vote in connection with our business combination will
increase the likelihood that we will be able to complete our initial business combination.
|
Terms of Our Offering
|
Terms of Many Blank
Check Offerings |
Impact on Whether a
Particular Business Combination is Completed |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Requirement
to vote against a business combination in order to redeem
|
If we
seek shareholder approval in conjunction with the consummation of our initial business combination, each public shareholder may elect to redeem their
public shares irrespective of whether they vote for or against the proposed transaction.
|
Many
blank check companies require public shareholders to vote against the proposed business combination in order to redeem their shares.
|
The
ability of our public shareholders to vote in favor of a business combination and redeem their shares may increase the likelihood that we will be able
to complete our initial business combination and decrease the ability of public shareholders to affect whether or not a particular business combination
is completed.
|
|||||||||||
Limited
Redemption Rights of 15% Public Shareholders
|
If we
seek shareholder approval of our initial business combination and we do not conduct redemptions in connection with our business combination pursuant to
the tender offer rules, our memorandum and articles of association provides that a public shareholder, individually or together with any affiliate of
such shareholder or any other person with whom such shareholder is acting in concert or as a group (as defined under Section 13 of the
Exchange Act), will be restricted from redeeming its shares with respect to more than an aggregate of 15% of the shares sold in this
offering.
|
Many
blank check companies limit the redemption rights of 10% 20% public shareholders and limit the voting rights of such public
shareholders.
|
We
believe this restriction will discourage shareholders from accumulating large blocks of shares, and subsequent attempts by such holders to use their
ability to redeem their shares as a means to force us or our management to purchase their shares at a significant premium to the then-current market
price or on other undesirable terms.
|
Terms of Our Offering
|
Terms of Many Blank
Check Offerings |
Impact on Whether a
Particular Business Combination is Completed |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Redemption
threshold
|
We do
not have a specified maximum redemption threshold apart from the limitation that we will not redeem our public shares in an amount that would cause our
net tangible assets to be less than $5,000,001. Furthermore, the redemption threshold may be further limited by the terms and conditions of our initial
business combination. In such case, we would not proceed with the redemption of our public shares and the related business combination, and instead may
search for an alternate business combination.
|
Many
blank check companies are not permitted to consummate our initial business combination if more than a specified percentage of the shares sold in such
companys initial public offering, which percentage threshold has typically been between 19.99% and 39.99%, elect to redeem or redeem their shares
in connection with the shareholder vote.
|
The
absence of a redemption threshold in our offering will make it easier for us to consummate our initial business combination even if a substantial
majority of our shareholders do not agree.
|
Name
|
Age
|
Position
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Emily
Chui-Hung Tong
|
60 |
Chairwoman
|
||||||||
Stephen N.
Cannon
|
46 |
President/CEO/Director
|
||||||||
Haibin Wang
|
48 |
Director nominee*
|
||||||||
Foelan Wong
|
44 |
Director nominee*
|
||||||||
Hai Wang
|
37 |
Director nominee*
|
||||||||
Jason Kon Man
Wong
|
50 |
Director nominee*
|
*
|
This individual has indicated his assent to occupy such position upon the effective date of the registration statement of which this prospectus forms part. |
Blank Check Company
|
Business Combination Facts
|
Role
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
China Unistone
Acquisition Corp. (Went private in 2012 and has discontinued reporting)
|
Target: Yucheng Technologies
|
Mr.
Cannon provided advisory services during the acquisition process and prepared and presented a fairness opinion to the board of directors of China
Unistone Acquisition Corp.
|
||||||||
IPO: $20.7 million
|
(Closed Dec. 2006)
|
|
||||||||
Great Wall
Acquisition Corp. (Currently quoted on OTC markets and has discontinued reporting)
|
Target: ChinaCast Education
|
Mr.
Cannon provided advisory services during the acquisition process.
|
||||||||
IPO: $27.1
million
|
(Closed Dec. 2006)
|
|
||||||||
|
OTC:CEUC
|
|
||||||||
Hambrecht Asia
Acquisition Corp (Currently listed on Nasdaq under the symbol SGOC)
|
Target: SGOCO
|
Mr.
Cannon was a co-founder, initial CFO and director from the companys formation through its initial public offering, and thereafter served as vice
president of target acquisitions; identified the ultimate target and negotiated the successful acquisition transaction.
|
||||||||
IPO: $33.5
million
|
(Closed Apr. 2010)
|
|
||||||||
|
OTC:SGOC
|
|
||||||||
Jaguar
Acquisition Corp. (Registration of its securities revoked in 2014 pursuant to Section 12(j) of the Exchange Act)
|
Target: China CableCom Ltd.
|
Mr.
Cannon provided advisory services during the acquisition process.
|
||||||||
IPO: $24.0 million
|
(Closed April 2008)
|
|
Blank Check Company
|
Business Combination Facts
|
Role
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Ruslan
Acquisition Corp. (IPO not consummated)
|
N/A
|
Mr.
Cannon was a co-founder and CFO of Ruslan Acquisition Corp, a proposed Russia-focused SPAC that filed to do a $300 million IPO with Euronext
regulators. The committed underwriters of the offering, Credit Suisse & Morgan Stanley, postponed the offering as a result of the global financial
crisis late 2008.
|
||||||||
Proposed IPO: $300 million
|
|
|
||||||||
Shanghai
Century Acquisition Corp. (Liquidated due to lack of requisite shareholder vote for the initial business combination)
|
Target: Asia Leader Investments Limited
|
Mr.
Cannon was involved in the underwriting process and provided advisory services during the acquisition process.
|
||||||||
IPO: $115.0
million
|
(Voted down)
|
|
||||||||
|
AMEX:SHA
|
|
|
the appointment, compensation, retention, replacement, and oversight of the work of the independent auditors and any other independent registered public accounting firm engaged by us; |
|
pre-approving all audit and non-audit services to be provided by the independent auditors or any other registered public accounting firm engaged by us, and establishing pre-approval policies and procedures; |
|
reviewing and discussing with the independent auditors all relationships the auditors have with us in order to evaluate their continued independence; |
|
setting clear hiring policies for employees or former employees of the independent auditors; |
|
setting clear policies for audit partner rotation in compliance with applicable laws and regulations; |
|
obtaining and reviewing a report, at least annually, from the independent auditors describing (i) the independent auditors internal quality-control procedures and (ii) any material issues raised by the most recent internal quality-control review, or peer review, of the audit firm, or by any inquiry or investigation by governmental or professional authorities, within, the preceding five years respecting one or more independent audits carried out by the firm and any steps taken to deal with such issues; |
|
reviewing and approving any related party transaction required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC prior to us entering into such transaction; and |
|
reviewing with management, the independent auditors, and our legal advisors, as appropriate, any legal, regulatory or compliance matters, including any correspondence with regulators or government agencies and any employee complaints or published reports that raise material issues regarding our financial statements or accounting policies and any significant changes in accounting standards or rules promulgated by the Financial Accounting Standards Board, the SEC or other regulatory authorities. |
|
reviewing and approving on an annual basis the corporate goals and objectives relevant to our Chief Executive Officers compensation, evaluating our Chief Executive Officers performance in light of such goals and objectives and determining and approving the remuneration (if any) of our Chief Executive Officers based on such evaluation; |
|
reviewing and approving the compensation of all of our other executive officers; |
|
reviewing our executive compensation policies and plans; |
|
implementing and administering our incentive compensation equity-based remuneration plans; |
|
assisting management in complying with our proxy statement and annual report disclosure requirements; |
|
approving all special perquisites, special cash payments and other special compensation and benefit arrangements for our executive officers and employees; |
|
producing a report on executive compensation to be included in our annual proxy statement; and |
|
reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors. |
|
None of our officers or directors is required to commit his or her full time to our affairs and, accordingly, may have conflicts of interest in allocating his or her time among various business activities. |
|
In the course of their other business activities, our officers and directors may become aware of investment and business opportunities which may be appropriate for presentation to us as well as the other entities with which they are affiliated. Our management may have conflicts of interest in determining to which entity a particular business opportunity should be presented. |
|
Our initial shareholders purchased founder shares prior to the date of this prospectus and our sponsors will purchase the insider units in a transaction that will close simultaneously with the closing of this offering. Our initial shareholders have agreed to waive their right to liquidating distributions with respect to its founder shares if we fail to consummate our initial business combination within 18 (or 24) months. However, if our initial shareholders acquire public shares in or after this offering, they will be entitled to receive liquidating distributions with respect to such public shares if we fail to consummate our initial business combination within the required time period. If we do not complete our initial business combination within such applicable time period, the proceeds of the sale of the insider units will be used to fund the redemption of our public shares, and the insider units will expire worthless. On the date of this prospectus, the founder shares will be placed into an escrow account maintained by Continental Stock Transfer & Trust Company, acting as escrow agent. Subject to certain limited exceptions, 50% of these shares will not be transferred, assigned, sold or released from escrow until the earlier of (i) one year after the date of the consummation of our initial business combination or (ii) the date on which the closing price of our ordinary shares equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after our initial business combination and the remaining 50% of the founder shares will not be transferred, assigned, sold or released from escrow until one year after the date of the consummation of our initial business combination, or earlier, in either case, if, subsequent to our initial business combination, we consummate a subsequent liquidation, merger, stock exchange or other similar transaction which results in all of our shareholders having the right to exchange their ordinary shares for cash, securities or other property. With certain limited exceptions, the insider units will not be transferable, assignable or salable by our initial shareholders until after the completion of our initial business combination. |
|
Our officers and directors may have a conflict of interest with respect to evaluating a particular business combination if the retention or resignation of any such officers and directors was included by a target business as a condition to any agreement with respect to our initial business combination. |
Name
|
Entity
(Role) |
Industry
|
Pre-existing Fiduciary or
Contractual Obligations |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Emily
Chui-Hung Tong
|
Method Investments & Advisory, LLC (CEO/President)
|
U.S.
registered broker-dealer
|
Ms.
Tong, in her capacity with Method Investments & Advisory LLC, regularly develops, pursues or is presented with business investment and combination
opportunities regarding its general advisory business for its clients. Ms. Tong is required to present all business opportunities which are suitable
for Method Investments & Advisory LLC prior to presenting them to us.
Notwithstanding the above, Ms. Tong believes that Method Investments & Advisory LLC generally does not have clients that seek similar investments as us, and thus she believes there will be limited conflicts with our company. |
|||||||||||
Stephen N.
Cannon
|
RedBridge Group Ltd. (Partner/Head of China)
|
Dubai
merchant banking firm
|
Mr.
Cannon, in his capacity with RedBridge Group Ltd, regularly develops, pursues or is presented with investment opportunities in China for gulf-based
investors. Mr. Cannon is required to present all business opportunities which are suitable for RedBridge Group Ltd prior to presenting them to us.
However, Mr. Cannon believes that Redbridge Group Ltd generally works with clients seeking investments and not business combination opportunities, and thus he believes there will be limited conflicts with our company. |
Name
|
Entity
(Role) |
Industry
|
Pre-existing Fiduciary or
Contractual Obligations |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Ackrell & Co
(Sr. Advisor) |
U.S.
registered broker-dealer
|
Mr.
Cannon is required to present all business opportunities which are suitable for Ackrell& Co prior to presenting them to us. However, Mr. Cannon, in
his capacity with Ackrell& Co, does not encounter business combination opportunities suitable to us, as the firm focuses primarily on technology
companies located generally in Silicon Valley area of California. Therefore he does not believe there will be significant conflicts with
us.
|
|||||||||||
Haibin
Wang
|
Star
Group Investment Holdings Limited
(General Manager) |
Investment Company
|
Mr.
Wang is required to present all business opportunities which are suitable for Star Group Investment Holdings Limited prior to presenting them to us.
However, Star Group Investment Holdings Limited makes direct investments focused in the financial and mining sectors in China. In addition, the firm is
generally pursuing investments of less than $10 million in size, and thus significantly less than our company. Therefore, Mr. Wang believes he will be
able to minimize potential conflicts.
|
|||||||||||
Foelan
Wong
|
Great
Wall Pan Asia International Investment Company Limited
(Managing Director) |
Asset
Management Firm
|
Great
Wall Pan Asia International Investment Company Limited is one of the largest investment company in China and is engaged in wide variety of investments.
Mr. Wong has a pre-existing duty to present appropriate investments to Great Wall Pan Asia prior to presenting them to us. However, Mr. Wong believes
that his firm does not generally engage in business combinations in a similar manner as us, and believes he will be able to minimize any potential
conflict he encounters.
|
Name
|
Entity
(Role) |
Industry
|
Pre-existing Fiduciary or
Contractual Obligations |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Hai
Wang
|
Top
(HK) Investment & Development Ltd.
(Board member) |
Private Equity Fund
|
Mr.
Wang is required to present all business opportunities which are suitable for Top (HK) Investment & Development Ltd. prior to presenting them to
us. Top (HK) Investment & Development Ltd. manages a private equity fund focused on emerging market sectors involving online business, online video
and online gaming, green energy, and financial industry. In addition, the firm is generally pursuing investments of less than $20 million in size, and
thus significantly less than our company. Therefore, Mr. Wang believes he will be able to minimize potential conflicts.
|
|||||||||||
Jason Kon
Man Wong
|
Whiz
Partners Asia Ltd (Board member)
|
Investment Advisory Management
|
Mr.
Wong is required to present all business opportunities which are suitable for Whiz Partners Asia Ltd. (WPA) prior to presenting them to us.
WPA is an investment advisory company focused on assisting Japanese companies with expanding their business operation in Asia. Mr. Wong also act as an
investment committee member of Whiz Asia Evolution Fund (WAEF). The core business of WAEF is to invest into Asia companies and it is under
the management of Whiz Partners Inc. (WPI) of Japan and WPA. Therefore, Mr. Wong believes that his firms do not seek similar investments as
us, and thus he believes there will be limited conflicts with our company.
|
Name
|
Entity
(Role) |
Industry
|
Pre-existing Fiduciary or
Contractual Obligations |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
De
Tiger Capital Ltd
|
Hong Kong SFC-Registered Investment Advisory Management
|
Mr. Wong, in his capacity as a board director with De Tiger Capital Ltd (DTC), is regularly aware of and involved as DTC
develops, pursues or is presented with business investment and combination opportunities regarding its general advisory business for its
clients. Mr. Wong is required to consider all such business opportunities as exclusive to DTC until DTC determines otherwise, and only then
may present them to us.
Notwithstanding the above, Mr. Wong believes that DTC generally does not have clients that seek similar investments as us, and thus he believes there will be limited conflicts with our company. |
|
each person known by us to be the beneficial owner of more than 5% of our outstanding ordinary shares; |
|
each of our officers, directors and director nominees that beneficially owns ordinary shares; and |
|
all our officers and directors as a group. |
Prior to Offering
|
After Offering
(2)
|
||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Name and Address of Beneficial Owner
(1)
|
Amount and
Nature of Beneficial Ownership |
Approximate
Percentage of Outstanding Shares of common stock (4) |
Amount and
Nature of Beneficial Ownership |
Approximate
Percentage of Outstanding Shares of common stock (5) |
|||||||||||||||
DeTiger
Holdings Limited
|
1,525,000 | 88.4 | % | 1,590,000 | 20.33 | % | |||||||||||||
Winnie Ng
|
1,525,000 | (3) | 88.4 | % | 1,590,000 | (3) | 20.33 | % | |||||||||||
Stephen N.
Cannon
|
50,000 | 2.90 | % | 50,000 | * | ||||||||||||||
Emily
Chui-Hung Tong
|
50,000 | 2.90 | % | 50,000 | * | ||||||||||||||
Jason Kon Man
Wong
|
25,000 | 1.45 | % | 25,000 | * | ||||||||||||||
Haibin Wang
|
25,000 | 1.45 | % | 25,000 | * | ||||||||||||||
Foelan Wong
|
25,000 | 1.45 | % | 25,000 | * | ||||||||||||||
Hai Wang
|
25,000 | 1.45 | % | 25,000 | * | ||||||||||||||
All directors
and executive officers as a group (6 individuals)
|
200,000 | 11.6 | % | 200,000 | 2.54 | % |
*
|
Less than one percent |
(1)
|
Unless otherwise indicated, the business address of each of the individuals is Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong. |
(2)
|
Includes the 320,000 private units to be purchased by our sponsor and EarlyBirdCapital and/or their designees simultaneously with the consummation of this offering. Assumes no exercise of the over-allotment option and, therefore, the forfeiture of an aggregate of 225,000 ordinary shares held by our sponsor. |
(3)
|
Includes 1,525,000 shares held by DeTiger Holdings Limited prior to the offering and 1,590,000 shares held by DeTiger Holdings Limited after the offering. Ms. Winnie Lai Ling Ng is the sole director and 100% owner of DeTiger Holdings Limited and exercises voting and dispositive power over the shares held by such entity. |
(4)
|
Based on 1,725,000 ordinary shares immediately prior to this offering. |
(5)
|
Based on 7,820,000 ordinary shares immediately after this offering (assumes the over-allotment option has not been exercised and an aggregate of 225,000 founder shares have been forfeited by our sponsor). |
|
at any time while the warrants are exercisable, |
|
upon not less than 30 days prior written notice of redemption to each warrant holder, |
|
if, and only if, the reported last sale price of the ordinary shares equals or exceeds $18.00 per share, for any 20 trading days within a 30 trading day period ending on the third business day prior to the notice of redemption to warrant holders, and |
|
if, and only if, there is a current registration statement in effect with respect to the ordinary shares underlying such warrants at the time of redemption and for the entire 30-day trading period referred to above and continuing each day thereafter until the date of redemption. |
|
If we are unable to consummate our initial business combination within 18 (or 24 if extended) from the closing of this offering, we will, as promptly as reasonably possible but not more than five |
|
business days thereafter, distribute the aggregate amount then on deposit in the trust account (less up to $20,000 of the net interest earned thereon to pay dissolution expenses), pro rata to our public shareholders by way of redemption and cease all operations except for the purposes of winding up of our affairs. This redemption of public shareholders from the trust account shall be done automatically by function of our memorandum and articles of association and prior to commencing any voluntary liquidation; and |
|
except in connection with the consummation of our initial business combination, prior to our initial business combination, we may not issue additional shares that would entitle the holders thereof to (i) receive funds from the trust account or (ii) vote on any initial business combination; |
|
although we do not intend to enter into our initial business combination with a target business that is affiliated with our sponsor, our directors or officers, we are not prohibited from doing so. In the event we enter into such a transaction, we, or a committee of independent directors, will obtain an opinion from an independent investment banking firm that is a member of FINRA that such our initial business combination is fair to our shareholders from a financial point of view; and |
|
we will not effectuate our initial business combination with another blank check company or a similar company with nominal operations. |
|
consolidate and divide all or any of our unissued authorized shares into shares of larger or smaller amount than our existing shares; |
|
cancel any ordinary shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person; or |
|
create new classes of shares with preferences to be determined by resolution of the board of directors to amend the memorandum and articles of association to create new classes of shares with such preferences at the time of authorization, although any such new classes of shares, with the exception of the preferred shares, may only be created with prior shareholder approval. |
British Virgin Islands
|
Delaware
|
||||||
---|---|---|---|---|---|---|---|
Shareholder Meetings
|
|||||||
Held at a time and place as determined by the directors
May be held within or outside the British Virgin Islands Notice: Under our memorandum and articles of association, a copy of the notice of any meeting shall be given not fewer than ten (10) days before the date of the proposed meeting to those persons whose names appear in the register of members on the date the notice is given and are entitled to vote at the meeting. |
May be held at such time or place as designated in the charter or the by-laws, or if not so designated, as determined by the
board of directors
May be held within or without Delaware Notice: Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any |
||||||
Shareholders Voting Rights
|
|||||||
Any person authorized to vote may be represented at a meeting by a proxy who may speak and vote on behalf of the member
Quorum is fixed by our memorandum and articles of association, to consist of the holder or holders present in person or by proxy entitled to exercise at least 35 percent of the voting rights of the shares of each class or series of shares entitled to vote as a class or series thereon |
Any person authorized to vote may authorize another person or persons to act for him by proxy
For stock corporations, the charter or by-laws may specify the number to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares shall constitute a quorum |
British Virgin Islands
|
Delaware
|
|||||
---|---|---|---|---|---|---|
Under our
memorandum and articles of association, subject to any rights or restrictions attached to any shares, at any general meeting on a show of hands every
shareholder who is present in person (or, in the case of a shareholder being a corporation, by its duly authorized representative) or by proxy shall
have one vote and on a poll every shareholder present in person (or, in the case of a shareholder being a corporation, by its duly appointed
representative) or by proxy shall have one vote for each share which such shareholder is the holder. Voting at any meeting of the shareholders is by
show of hands unless a poll is demanded. A poll may be demanded by shareholders present in person or by proxy if the shareholder disputes the outcome
of the vote on a proposed resolution and the chairman shall cause a poll to be taken.
|
For
non-stock companies, the charter or by-laws may specify the number of shareholders to constitute a quorum. In the absence of this, one-third of the
shareholders shall constitute a quorum
|
|||||
Changes in the
rights attaching to shares as set forth in the memorandum and articles of association require approval of not less than 65% (or 50% if for the purposes
of approving, or in connection with, the consummation of our initial business combination) of our outstanding ordinary shares attending and voting on
such amendment prior to the consummation of our initial business combination and a majority of our outstanding ordinary shares attending and voting at
the general meeting following the consummation of our initial business combination, in the case of the ordinary shares, or 50% in the case of the
preferred shares of the votes of shareholders who being so entitled attend and vote at a meeting of such class, except, in each case, where a greater
majority is required under our memorandum and articles of association or the Companies Act, provided that that for these purposes the creation,
designation or issue of preferred shares with rights and privileges ranking in priority to an existing class of shares shall be deemed not to be a
variation of the rights of such existing class.
|
Except as provided in the charter documents, changes in the rights of shareholders as set forth in the charter documents require approval of a
majority of its shareholders
|
|||||
The memorandum
and articles of association do not provide for cumulative voting in the election of directors
|
The
memorandum and articles of association may provide for cumulative voting
|
|||||
If we decide to
seek shareholder approval in respect of the consummation of our initial business combination, such approval may be by a majority vote of shareholders
who being so entitled attend and vote at the general meeting
|
Approval of our initial business combination may be by a majority of outstanding shares if such transaction involves the merger of such
entity
|
British Virgin Islands
|
Delaware
|
||||||
---|---|---|---|---|---|---|---|
All other matters
to be decided upon by the shareholders require a majority vote of shareholders who being so entitled attend and vote at the general meeting, unless the
Companies Act requires a higher majority. Our memorandum and articles of association also may be amended by resolution of directors, including to
create the rights, preferences, designations and limitations attaching to any blank check preferred shares.
|
|
||||||
Directors
|
|||||||
Board must
consist of at least one director
|
Board
must consist of at least one member
|
||||||
Maximum and
minimum number of directors can be changed by an amendment to the articles of association, with such amendment being passed by a resolution of
shareholders or a resolution of directors
|
Number of board members shall be fixed by the by-laws, unless the charter fixes the number of directors, in which case a change in the number
shall be made only by amendment of the charter
|
||||||
Directors are
appointed for three year staggered terms by the shareholders (as described under Directors below). However, the directors may by resolution
appoint a replacement director to fill a casual vacancy arising on the resignation, disqualification or death of a director. The replacement director
will then hold office until the next annual general meeting at which the director he replaces would have been subject to retirement by
rotation.
|
|||||||
Directors do not
have to be independent
Under our memorandum and articles of association, a director may not be removed from office by a resolution of our shareholders prior to the consummation of our business combination. |
Directors do not have to be independent
|
||||||
Fiduciary Duties
|
|||||||
Directors and
officers owe fiduciary duties at both common law and under statute as follows:
|
Directors and officers must act in good faith, with the care of a prudent person, and in the best interest of the
corporation.
|
||||||
Duty to act honestly and in good faith in what the directors believe to be in the best interests of the company; |
Directors and officers must refrain from self-dealing, usurping corporate opportunities and receiving improper personal benefits. |
||||||
Duty to exercise powers for a proper purpose and directors shall not act, or agree to act, in a matter that contravenes the Companies Act or the memorandum and articles of association; |
Decisions made by directors and officers on an informed basis, in good faith and in the honest belief that the action was taken in the best interest of the corporation will be protected by the business judgment rule. |
British Virgin Islands
|
Delaware
|
|||||
---|---|---|---|---|---|---|
Duty to exercise
the care, diligence and skill that a reasonable director would exercise in the circumstances taking into account, without limitation:
|
||||||
(a) the nature of the company; (b) the nature of the decision; and (c) the position of the director and the nature of the responsibilities undertaken by him. |
|
|||||
The Companies Act
provides that, a director of a company shall, immediately after becoming aware of the fact that he is interested in a transaction entered into, or to
be entered into, by the company, disclose the interest to the board of the company. However, the failure of a director to disclose that interest does
not affect the validity of a transaction entered into by the director or the company, so long as the transaction was not required to be disclosed
because the transaction is between the company and the director himself and is in the ordinary course of business and on usual terms and conditions.
Additionally, the failure of a director to disclose an interest does not affect the validity of the transaction entered into by the company if (a) the
material facts of the interest of the director in the transaction are known by the shareholders and the transaction is approved or ratified by a
resolution of shareholders entitled to vote at a meeting of shareholders or (b) the company received fair value for the transaction.
|
Directors may vote on a matter in which they have an interest so long as the director has disclosed any interests in the
transaction.
|
|||||
Pursuant to the
Companies Act, the companys memorandum and articles of association, so long as a director has disclosed any interests in a transaction entered
into or to be entered into by the company to the board he/she may:
|
|
|||||
vote on a matter relating to the transaction; |
||||||
attend a meeting of directors at which a matter relating to the transaction arises and be included among the directors present at the meeting for the purposes of a quorum; and |
|
|||||
sign a document on behalf of the company, or do any other thing in his capacity as a director, that relates to the transaction. |
|
British Virgin Islands
|
Delaware
|
||||||
---|---|---|---|---|---|---|---|
Shareholders Derivative Actions
|
|||||||
Generally
speaking, the company is the proper plaintiff in any action. A shareholder may, with the permission of the British Virgin Islands Court, bring an
action or intervene in a matter in the name of the company, in certain circumstances. Such actions are known as derivative actions. The British Virgin
Islands Court may only grant permission to bring a derivative action where the following circumstances apply:
|
In
any derivative suit instituted by a shareholder of a corporation, it shall be averred in the complaint that the plaintiff was a shareholder of the
corporation at the time of the transaction of which he complains or that such shareholders stock thereafter devolved upon such shareholder by
operation of law.
|
||||||
the company does not intend to bring, diligently continue or defend or discontinue the proceedings; and |
Complaint shall set forth with particularity the efforts of the plaintiff to obtain the action by the board or the reasons for not making such effort. |
||||||
it is in the interests of the company that the conduct of the proceedings not be left to the directors or to the determination of the shareholders as a whole. |
Such action shall not be dismissed or compromised without the approval of the Chancery Court. |
||||||
When considering
whether to grant leave, the British Virgin Islands Court is also required to have regard to the following matters:
|
|||||||
whether the shareholder is acting in good faith; whether a derivative action is in the interests of the company, taking into account the directors views on commercial matters; whether the action is likely to succeed; the costs of the proceedings in relation to the relief likely to be obtained; and whether another alternative remedy to the derivative action is available. |
If we were a Delaware corporation, a shareholder whose shares were canceled in connection with our dissolution, would not be able to bring a derivative action against us after the ordinary shares have been canceled. |
(a)
|
vote on a matter relating to the transaction; |
(b)
|
attend a meeting of directors at which a matter relating to the transaction arises and be included among the directors present at the meeting for the purposes of a quorum; and |
(c)
|
sign a document on behalf of the company, or do any other thing in his capacity as a director, that relates to the transaction. |
|
the company does not intend to bring, diligently continue or defend or discontinue proceedings; and |
|
it is in the interests of the company that the conduct of the proceedings not be left to the directors or to the determination of the shareholders as a whole. |
|
When considering whether to grant leave, the British Virgin Islands Court is also required to have regard to the following matters: |
|
whether the shareholder is acting in good faith; |
|
whether a derivative action is in the companys best interests, taking into account the directors views on commercial matters; |
|
whether the action is likely to proceed; |
|
the costs of the proceedings; and |
|
whether an alternative remedy is available. |
|
a company is acting or proposing to act illegally or beyond the scope of its authority; |
|
the act complained of, although not beyond the scope of the authority, could only be effected if duly authorized by more than the number of votes which have actually been obtained; |
|
the individual rights of the plaintiff shareholder have been infringed or are about to be infringed; or |
|
those who control the company are perpetrating a fraud on the minority. |
(a)
|
the memorandum and articles; |
(b)
|
the register of members; |
(c)
|
the register of directors; and |
(d)
|
the minutes of meetings and resolutions of members and of those classes of members of which he is a member; and to make copies of or take extracts from the documents and records referred to in (a) to (d) above. |
|
1% of the total number of ordinary shares then outstanding, which will equal 78,500 shares immediately after this offering (or 90,133 if the underwriters exercise their over-allotment option); or |
|
the average weekly reported trading volume of the ordinary shares during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
|
the issuer of the securities that was formerly a shell company has ceased to be a shell company; |
|
the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; |
|
the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding 12 months (or such shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports; and |
|
at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company. |
|
an individual citizen or resident of the United States; |
|
a corporation (or other entity treated as a corporation) that is created or organized (or treated as created or organized) in or under the laws of the United States, any state thereof or the District of Columbia; |
|
an estate whose income is includible in gross income for U.S. federal income tax purposes regardless of its source; or |
|
a trust if (i) a U.S. court can exercise primary supervision over the trusts administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
|
financial institutions or financial services entities; |
|
broker-dealers; |
|
taxpayers that are subject to the mark-to-market accounting rules under Section 475 of the Code; |
|
tax-exempt entities; |
|
governments or agencies or instrumentalities thereof; |
|
insurance companies; |
|
regulated investment companies; |
|
real estate investment trusts; |
|
expatriates or former long-term residents of the United States; |
|
persons that actually or constructively own 5 percent or more of our voting shares; |
|
persons that acquired our securities pursuant to an exercise of employee share options, in connection with employee share incentive plans or otherwise as compensation; |
|
persons that hold our securities as part of a straddle, constructive sale, hedging, redemption or other integrated transaction; or |
|
persons whose functional currency is not the U.S. dollar. |
|
any gain recognized by the U.S. Holder on the sale or other disposition of its ordinary shares, rights or warrant; and |
|
any excess distribution made to the U.S. Holder (generally, any distributions to such U.S. Holder during a taxable year of the U.S. Holder that are greater than 125% of the average annual distributions received by such U.S. Holder in respect of the ordinary shares during the three preceding taxable years of such U.S. Holder or, if shorter, such U.S. Holders holding period for the ordinary shares). |
|
the U.S. Holders gain or excess distribution will be allocated ratably over the U.S. Holders holding period for the ordinary shares, rights or warrants; |
|
the amount allocated to the U.S. Holders taxable year in which the U.S. Holder recognized the gain or received the excess distribution, or to the period in the U.S. Holders holding period before the first day of our first taxable year in which we are a PFIC, will be taxed as ordinary income; |
|
the amount allocated to other taxable years (or portions thereof) of the U.S. Holder and included in its holding period will be taxed at the highest tax rate in effect for that year and applicable to the U.S. Holder; and |
|
the interest charge generally applicable to underpayments of tax will be imposed in respect of the tax attributable to each such other taxable year of the U.S. Holder. |
|
fails to provide an accurate taxpayer identification number; |
|
is notified by the IRS that backup withholding is required; or |
|
fails to comply with applicable certification requirements. |
|
political and economic stability; |
|
an effective and sophisticated judicial system with a dedicated Commercial Court; |
|
tax neutral treatment, with no tax levied against companies incorporated in the British Virgin Islands by the local tax authorities; |
|
the absence of exchange control or currency restrictions; and |
|
the availability of professional and support services. |
|
In addition to the benefits listed above, incorporation in the British Virgin Islands offers investors the following benefits: |
|
commitment of the British Virgin Islands to implement best international practice and to comply with the requirements of the Organization of Economic Cooperation and Development (OECD) and the Financial Action Taskforce (FATF); |
|
the adoption of the English law concept of corporate separateness to mitigate the risk of the assets of a shareholder being used to satisfy the liabilities of the company; and |
|
confidentiality for shareholders. |
|
However, there are certain disadvantages accompanying incorporation in the British Virgin Islands. These disadvantages include: |
|
the British Virgin Islands has a less developed body of securities laws as compared to the United States and provides significantly less protection to investors; and |
|
British Virgin Islands companies may not have standing to sue before the federal courts of the United States. |
|
the U.S. court issuing the judgment had jurisdiction in the matter and the company either submitted to such jurisdiction or was resident or carrying on business within such jurisdiction and was duly served with process; |
|
is final and for a liquidated sum; |
|
the judgment given by the U.S. court was not in respect of penalties, taxes, fines or similar fiscal or revenue obligations of the company; |
|
in obtaining judgment there was no fraud on the part of the person in whose favor judgment was given or on the part of the court; |
|
recognition or enforcement of the judgment in the BVI would not be contrary to public policy; and |
|
the proceedings pursuant to which judgment was obtained were not contrary to natural justice. |
Underwriter
|
Number of
Units |
|||||
---|---|---|---|---|---|---|
EarlyBirdCapital, Inc.
|
||||||
Total
|
6,000,000 |
|
the history of other similarly structured blank check companies; |
|
prior offerings of those companies; |
|
our prospects for acquiring an operating business at attractive values; |
|
our capital structure; |
|
securities exchange listing requirements; |
|
market demand; |
|
expected liquidity of our securities; and |
|
general conditions of the securities markets at the time of the offering. |
Per Unit
|
Without
Over-allotment |
With
Over-allotment |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Public
offering price
|
$ | 10.00 | $ | 60,000,000 | $ | 69,000,000 | ||||||||
Discount
|
$ | 0.325 | $ | 1,950,000 | $ | 2,242,500 | ||||||||
Proceeds
before expenses
(1)
|
$ | 9.675 | $ | 58,050,000 | $ | 66,757,500 |
(1)
|
The offering expenses are estimated at $400,000. |
|
Stabilizing Transactions. The underwriters may make bids or purchases solely for the purpose of preventing or retarding a decline in the price of our units, as long as stabilizing bids do not exceed the offering price of $10.00 and the underwriters comply with all other applicable rules. |
|
Over-Allotments and Syndicate Coverage Transactions. The underwriters may create a short position in our units by selling more of our units than are set forth on the cover page of this prospectus up to the amount of the over-allotment option. This is known as a covered short position. The underwriters may also create a short position in our units by selling more of our units than are set forth on the cover page of this prospectus and the units allowed by the over-allotment option. This is known as a naked short position. If the underwriters create a short position during the offering, the representative may engage in syndicate covering transactions by purchasing our units in the open market. The representative may also elect to reduce any short position by exercising all or part of the over- |
|
allotment option. Determining what method to use in reducing the short position depends on how the units trade in the aftermarket following the offering. If the unit price drops following the offering, the short position is usually covered with shares purchased by the underwriters in the aftermarket. However, the underwriters may cover a short position by exercising the over-allotment option even if the unit price drops following the offering. If the unit price rises after the offering, then the over-allotment option is used to cover the short position. If the short position is more than the over-allotment option, the naked short must be covered by purchases in the aftermarket, which could be at prices above the offering price. |
|
Penalty Bids. The representative may reclaim a selling concession from a syndicate member when the units originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. |
|
the purchaser is entitled under applicable provincial securities laws to purchase our securities without the benefit of a prospectus qualified under those securities laws; |
|
where required by law, that the purchaser is purchasing as principal and not as agent; |
|
the purchaser has reviewed the text above under Resale Restrictions; and |
|
the purchaser acknowledges and consents to the provision of specified information concerning its purchase of our securities to the regulatory authority that by law is entitled to collect the information. |
Page
|
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F-2
|
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F-3
|
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F-4
|
||||||
F-5
|
||||||
F-6
|
||||||
F-7
|
ASSETS
|
||||||
Current
Asset
|
||||||
Cash
|
$ | 74,914 | ||||
Prepaid
assets
|
25 | |||||
Deferred
offering costs associated with proposed public offering
|
77,616 | |||||
Total
Assets
|
$ | 152,555 | ||||
LIABILITIES AND SHAREHOLDERS EQUITY
|
||||||
Current
Liabilities
|
||||||
Accrued
expenses
|
$ | 7,951 | ||||
Amount due to
Sponsor
|
125,000 | |||||
Total
Liabilities
|
132,951 | |||||
Commitments and Contingencies
|
||||||
Shareholders Equity
|
||||||
Preferred
shares, no par value, unlimited shares authorized; none issued
|
| |||||
Ordinary
shares, no par value, unlimited shares authorized; 1,725,000 shares issued and outstanding
|
25,000 | |||||
Accumulated
deficit
|
(5,396 | ) | ||||
Total
Shareholders Equity
|
19,604 | |||||
Total
Liabilities and Shareholders Equity
|
$ | 152,555 |
Formation
costs
|
$ | (2,128 | ) | |||
General and
administrative expenses
|
(3,268 | ) | ||||
Net
loss
|
$ | (5,396 | ) | |||
Basic and
diluted weighted average shares outstanding
|
49,593 | |||||
Basic and
diluted net loss per share
|
$ | (0.11 | ) |
Ordinary Shares
|
||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Shares
|
Amount
|
Accumulated
Deficit During the Development Stage |
Shareholders
Equity |
|||||||||||||||
Ordinary
shares issued
|
1,725,000 | $ | 25,000 | $ | | $ | 25,000 | |||||||||||
Net loss
|
| | (5,396 | ) | $ | (5,396 | ) | |||||||||||
Balance as of
June 10, 2014
|
1,725,000 | $ | 25,000 | $ | (5,396 | ) | $ | 19,604 |
Operating
Activities
|
||||||
Net Loss
|
$ | (5,396 | ) | |||
Changes in
current assets and current liabilities
|
||||||
Change in
prepaid assets
|
(25 | ) | ||||
Net cash used
in operating activities
|
(5,421 | ) | ||||
Financing
Activities
|
||||||
Proceeds from
sale of ordinary shares to initial shareholders
|
1,450 | |||||
Proceeds from
Sponsor
|
148,550 | |||||
Payment of
deferred offering costs
|
(69,665 | ) | ||||
Net cash
provided by financing activities
|
80,335 | |||||
Net
increase in cash and cash equivalents
|
74,914 | |||||
Cash and cash
equivalents, beginning
|
| |||||
Cash and cash
equivalents, ending
|
$ | 74,914 | ||||
Supplemental schedule of non-cash financing activities:
|
||||||
Increase in
accrued expenses for deferred offering costs
|
$ | 7,951 | ||||
Ordinary
shares issued for repayment of payable to Sponsor
|
$ | 23,550 |
|
If the Company holds a shareholder vote to approve an initial business combination, any Public Shareholder seeking redemption will have his or her Unit redeemed for a full pro rata portion of the Trust Account (initially expected to be $10.05 per Unit) net of (i) taxes payable and (ii) interest income earned on the Trust Account previously released to the Company for working capital requirements. |
|
If the Company commences a tender offer in connection with an initial business combination, Public Shareholders seeking redemption will have his or her Units redeemed for a pro rata portion of the Trust Account (initially expected to be $10.05 per Unit) net of (i) taxes payable and (ii) interest income earned on the Trust Account previously released to the Company for working capital requirements. |
For the period
from April 8, 2014 (Date of Inception) to June 10, 2014 |
||||||
---|---|---|---|---|---|---|
Numerator:
|
||||||
Net loss
|
$ | (5,396 | ) | |||
Denominator:
|
||||||
Denominator
for basic earnings per share Weighted-average Ordinary Shares outstanding during the year
|
49,593 | |||||
Denominator
for diluted earnings per share
|
49,593 | |||||
Basic loss
per share
|
$ | (0.11 | ) | |||
Diluted loss
per share
|
$ | (0.11 | ) |
1.
|
Ordinary shares of no par value (Ordinary Shares); |
2.
|
Class A preferred shares of no par value (Class A Preferred Shares); |
3.
|
Class B preferred shares of no par value (Class B Preferred Shares); |
4.
|
Class C preferred shares of no par value (Class C Preferred Shares); |
5.
|
Class D preferred shares of no par value (Class D Preferred Shares); and |
6.
|
Class E preferred shares of no par value (Class E Preferred Shares and together with the Class A Preferred Shares, the Class B Preferred Shares, Class C Preferred Shares and the Class D Preferred Shares being referred to as the Preferred Shares). |
|
one year after the date of the consummation of an initial business combination; and |
|
the date on which the closing price of the Shares exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after an initial business combination. |
SEC
Registration Fees
|
$ | 8,887 | ||||
FINRA Filing
Fees
|
$ | 14,990 | ||||
Accounting
fees and expenses
|
$ | 30,000 | ||||
Printing and
engraving expenses
|
$ | 45,000 | ||||
Nasdaq Capital
Market expenses
|
$ | 50,000 | ||||
D&O
insurance
|
$ | 75,000 | ||||
Legal fees and
expenses
|
$ | 170,000 | ||||
Miscellaneous
(1)
|
$ | 6,123 | ||||
Total
|
$ | 400,000 |
(1)
|
This amount represents additional expenses that may be incurred by the Company in connection with the offering over and above those specifically listed above, including distribution and mailing costs. |
(a)
|
The following exhibits are filed as part of this Registration Statement: |
Exhibit No.
|
Description
|
|||||
---|---|---|---|---|---|---|
1.1 |
Form
of Underwriting Agreement*
|
|||||
1.2 |
Letter Agreement between the Registrant and EarlyBirdCapital***
|
|||||
3.1 |
Memorandum and articles of association***
|
|||||
3.2 |
Amended and Restated Memorandum and Articles of Association*
|
|||||
4.1 |
Specimen Unit Certificate*
|
|||||
4.2 |
Specimen Ordinary Shares Certificate*
|
|||||
4.3 |
Specimen Right Certificate*
|
|||||
4.4 |
Specimen Warrant Certificate*
|
|||||
4.5 |
Form
of Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant.*
|
|||||
4.6 |
Form of Unit Purchase Option between the Registrant and EarlyBirdCapital, Inc.*
|
|||||
5.1 |
Form
of Opinion of Ogier*
|
|||||
5.2 |
Form
of Opinion of Ellenoff Grossman & Schole LLP*
|
|||||
10.1 |
Form
of Letter Agreement among the Registrant, EarlyBirdCapital, Inc. and each of the sponsor, directors and officers of the
Registrant.***
|
|||||
10.2 |
Form
of Investment Management Trust Agreement between Continental Stock Transfer & Trust Company and the Registrant*
|
|||||
10.3 |
Form
of Letter Agreement between DeTiger Holdings Limited, our sponsor, and the Registrant regarding administrative support*
|
|||||
10.4 |
Form
of Escrow Agreement between the Registrant, Continental Stock Transfer & Trust Company and the Initial Stockholders.*
|
|||||
10.5 |
Securities Purchase Agreement between the Company and Emily Chui-Hung Tong.*
|
|||||
10.6 |
Securities Purchase Agreement between the Company and Stephen N. Cannon*
|
|||||
10.7 |
Securities Purchase Agreement between the Company and DeTiger Holdings Limited*
|
|||||
10.8 |
Unit
Purchase Agreement between the Registrant and sponsor*
|
|||||
10.9 |
Unit
Purchase Agreement between the Registrant and EarlyBirdCapital*
|
|||||
10.10 |
Form
of Registration Rights Agreement between the Registrant and securityholders.*
|
|||||
10.11 |
Form
of Indemnity Agreement**
|
|||||
10.12 |
Form
of Right Agreement***
|
|||||
14 |
Form
of Code of Ethics**
|
|||||
23.1 |
Consent of UHY LLP*
|
|||||
23.2 |
Consent of Ogier (included in Exhibit 5.1)**
|
|||||
23.3 |
Consent of Ellenoff Grossman & Schole LLP (included on Exhibit 5.2)**
|
|||||
24 |
Power
of Attorney (included in signature page)
|
|||||
99.1 |
Audit
Committee Charter**
|
|||||
99.2 |
Compensation Committee Charter**
|
|||||
99.3 |
Consent of Haibin Wang*
|
|||||
99.4 |
Consent of Foelan Wong*
|
|||||
99.5 |
Consent of Hai Wang*
|
|||||
99.6 |
Consent of Jason Kon Man Wong*
|
*
|
Filed herewith |
**
|
To be filed by amendment. |
***
|
Previously filed. |
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i)
|
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; |
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2)
|
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4)
|
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(5)
|
For the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule |
|
430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(6)
|
For the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by an undersigned registrant; |
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
|
DT
ASIA INVESTMENTS LIMITED
|
|||||||||
|
|
|
||||||||
|
By:
|
/s/ Stephen N. Cannon
|
||||||||
|
Name:
|
Stephen N. Cannon
|
||||||||
|
Title:
|
Chief
Executive Officer
|
Name
|
Position
|
Date
|
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Stephen N.
Cannon
|
Chief
Executive Officer, President and Director
(Principal executive officer and principal financial officer) |
August 27, 2014
|
||||||||
|
|
|
||||||||
Emily
Chui-Hung Tong
|
Chairman of the Board
|
August 27, 2014
|
Exhibit 1.1
6,000,000 Units
DT Asia Investments Limited
UNDERWRITING AGREEMENT
New York, New York
[ ], 2014
EarlyBirdCapital, Inc.
275 Madison Avenue, Suite 2701
New York, New York 10016
As Representative of the Underwriters
named on Schedule A hereto
Ladies and Gentlemen:
DT Asia Investments Limited, a British Virgin Islands company (the “ Company ”), hereby confirms its agreement with EarlyBirdCapital, Inc. (the “ Representative ”) and with the other underwriters named on Schedule A hereto (if any), for which the Representative is acting as representative (the “ Representative ,” with the Representative and such other underwriters being collectively referred to herein as the “ Underwriters ” or, each underwriter individually, an “ Underwriter ”) as follows:
1. | Purchase and Sale of Securities . |
1.1. | Units . |
1.1.1. Purchase of Units . On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters, severally and not jointly, an aggregate of 6,000,000 units of the Company (the “ Firm Units ”) at a purchase price (net of discounts and commissions) of $9.675 per Firm Unit. Each Unit consists of one ordinary share of the Company, no par value per share (the “ Ordinary Shares ”), one right (the “ Right(s) ”), each entitling the holder to automatically receive one-tenth (1/10) of an Ordinary Share upon consummation of any proposed initial merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (“ Business Combination ”), and one warrant (the “ Warrant(s) ”) each to purchase one-half (1/2) of one Ordinary Share for $12.00 per full share. The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Units set forth opposite their respective names on Schedule A . The Firm Units are to be offered initially to the public (the “ Offering ”) at the offering price of $10.00 per Firm Unit.
EarlyBirdCapital, Inc.
, 2014
Page 2 of 45
1.1.2. Payment and Delivery . Delivery and payment for the Firm Units shall be made at 10:00 A.M., New York time, on the third (3 rd ) Business Day following the commencement of trading of the Firm Units, or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of the Representative or at such other place as shall be agreed upon by the Representative and the Company. The closing of the Offering is referred to herein as the “ Closing ” and the hour and date of delivery and payment for the Firm Units is referred to herein as the “ Closing Date .” Payment for the Firm Units shall be made on the Closing Date through the facilities of Depository Trust Company (“ DTC ”) by wire transfer in Federal (same day) funds. The Company shall receive an aggregate of $61,150,000 net proceeds from the sale of the Firm Units and the Private Units (defined in Section 1.4.2 below), of which $60,600,000 shall be deposited on the Closing Date into the trust account (the “ Trust Account ”) established by the Company for the benefit of the Public Shareholders (as defined below), as described in the Registration Statement (as defined in Section 2.1.1 hereof) and pursuant to the terms of an Investment Management Trust Agreement (the “ Trust Agreement ”) between the Company and Continental Stock Transfer & Trust Company (“ CST&T ”). The remaining proceeds (less actual expense payments or other fees payable pursuant to this Agreement) shall be paid to the order of the Company upon delivery of certificates (in form and substance reasonably satisfactory to the Representative) representing the Firm Units (or through the facilities of the DTC for the account of the Representative). The Firm Units shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two (2) Business Days (defined below) prior to the Closing Date. The Company will permit the Representative to examine and package the Firm Units for delivery at least one (1) full Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for all the Firm Units. As used herein, the term “ Business Day ” shall mean any day other than a Saturday, Sunday or any day on which national banks in New York, New York are not open for business, and the term “ Public Shareholders ” means the holders of Ordinary Shares sold in the Offering or acquired in the aftermarket, including any of the Insiders (as defined in Section 1.4.1 herein) to the extent they acquire such Ordinary Shares in the Offering or in the aftermarket (and solely with respect to such shares).
1.2. | Over-Allotment Option |
1.2.1. The Representative shall have the option (the “ Over-Allotment Option” ) to purchase all or less than all of an additional 900,000 Units (the “ Option Units ”) solely for the purposes of covering any over-allotments in connection with the distribution and sale of the Firm Units. Such Option Units shall, at the Representative’s election, be purchased for each account of the several Underwriters in the same proportion as the number of Firm Units set forth opposite such Underwriter’s name on Schedule A hereto (subject to adjustment by the Representative to eliminate fractions). Such Option Units shall be identical in all respects to the Firm Units. The Firm Units and the Option Units are hereinafter collectively referred to as the “ Public Securities .” No Option Units shall be sold or delivered unless the Firm Units previously have been, or simultaneously are, sold and delivered. The right to purchase the Option Units, or any portion thereof, may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representative to the Company. The purchase price to be paid for each Option Unit (net of discounts and commissions) will be $9.675 per Option Unit.
EarlyBirdCapital, Inc.
, 2014
Page 3 of 45
1.2.2. Exercise of Option . The Over-Allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Units within forty-five (45 days) after the Effective Date. The Representative will not be under any obligation to purchase any Option Units prior to the exercise of the Over-Allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company by the Representative, which must be confirmed in accordance with Section 10.1 herein setting forth the number of Option Units to be purchased and the date and time for delivery of and payment for the Option Units, if other than the Closing Date (the “ Option Closing Date ”), which shall not be earlier than the Closing Date or be later than ten (10) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of the Representative or at such other place as shall be agreed upon by the Company and the Representative. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey to the Representative, and, subject to the terms and conditions set forth herein, the Representative will become obligated to purchase, the number of Option Units specified in such notice.
1.2.3. Payment and Delivery . Payment for the Option Units shall be made on the Option Closing Date at the Representative’s election by wire transfer in Federal (same day) funds or by certified or bank cashier’s check(s) in New York Clearing House funds, payable as follows: $9.675 per Option Unit shall be deposited in the Trust Fund pursuant to the Trust Agreement upon delivery of certificates (in form and substance satisfactory to the Representative) representing the Option Units (or through the facilities of DTC) for the account of the Representative). The certificates representing the Option Units to be delivered will be in such denominations and registered in such names as the Representative requests not less than two full business days prior to the Closing Date or the Option Closing Date, as the case may be, and will be made available to the Representative for inspection, checking and packaging at the aforesaid office of the Company’s transfer agent or correspondent not less than one full business day prior to such Closing Date.
1.3. Representative’s Purchase Option . The Company hereby agrees to issue and sell to the Representative (and/or its designees) on the Closing Date, for an aggregate purchase price of $100.00, an option (“ Representative’s Purchase Option ”) to purchase up to an aggregate of 600,000 Units (the “ Representative’s Units ”). The Representative’s Purchase Option shall be exercisable whether for cash or on a cashless basis, in whole or in part, commencing on the later of the consummation of a Business Combination or one year from the Effective Date and expiring on the five-year anniversary of the Effective Date at an initial exercise price per Representative’s Unit of $11.75, which is equal to one hundred seventeen and one half percent (117.5%) of the initial public offering price per Unit. On the Closing Date, the Company shall deliver to the Representative, upon payment therefor, certificates for the Representative’s Purchase Option in the name or names and in such denominations as the Representative may request. The Representative’s Purchase Option, the Representative’s Units, the Ordinary Shares included in the Representative’s Units, the Rights included in the Representative’s Units (the “Representative’s Rights” ), the Warrants included in the Representative’s Units (the “ Representative’s Warrants ”) and the Ordinary Shares issuable pursuant to the terms of the Representative’s Rights and Representative’s Warrants are hereinafter referred to collectively as the “ Representative’s Securities .” Delivery and payment for the Representative’s Purchase Option shall be made on the Closing Date.
EarlyBirdCapital, Inc.
, 2014
Page 4 of 45
1.4. | Private Placements . |
1.4.1. The Company issued to DeTiger Holdings Limited (the “ Sponsor ”) and the Company’s officers and directors (collectively, the “ Insiders ”), for aggregate consideration of $25,000, 1,725,000 Ordinary Shares (the “ Insider Shares ”) in a private placement intended to be exempt from registration under Section 4(2) of the Securities Act of 1933, as amended (the “ Act ”). No underwriting discounts, commissions or placement fees have been or will be payable in connection with the sale of the Insider Shares. The Insider Shares shall be held in escrow and subject to restrictions on transfer as set forth in the Escrow Agreement (as defined in Section 2.24.3 hereof). The Insiders shall have no right to any liquidation distributions with respect to any portion of the Insider Shares in the event the Company fails to consummate a Business Combination within the required time period except with respect to any funds held outside of the Trust Account remaining after payment of all fees and expenses. The Insiders shall not have conversion rights with respect to the Insider Shares. To the extent that the Over-allotment Option is not exercised by the Underwriters in full or in part, up to 225,000 of the Insider Shares shall be subject to forfeiture by the Sponsor. The Sponsor will be required to forfeit only a number of Ordinary Shares necessary to maintain the Insiders’ 20% ownership interest in the Ordinary Shares after giving effect to the Offering and exercise, if any, of the Underwriters’ Over-allotment Option (and excluding the purchase of the Private Units and any shares purchased in the Offering).
1.4.2. Simultaneously with the Closing Date, the Sponsor and the Representative (and/or its designees) will purchase from the Company pursuant to Subscription Agreements (as defined in Section 2.24.2 hereof), an aggregate of 320,000 and 30,000 Units, respectively, the “Private Units” ) at a purchase price of $10.00 per Private Unit in a private placement (the “ Private Placement ”) intended to be exempt from registration under the Act. The terms of the Private Units are as described in the Prospectus (as defined in Section 2.1.1). No underwriting discounts, commissions or placement fees have been or will be payable in connection with the Private Placement. The purchasers have also agreed that, in the event the Representative has exercised the Over-allotment Option, they will purchase up to 34,971 and 3,279 additional Private Units, respectively, on a pro-rata basis, such that the proceeds from the sale of the Option Units and additional Private Units shall equal $10.10 per Option Unit.
EarlyBirdCapital, Inc.
, 2014
Page 5 of 45
1.5. | Working Capital; Trust Account Proceeds . |
1.5.1. Working Capital . Upon consummation of the Offering, it is intended that approximately $550,000 of the proceeds from the sale of the Firm Units and Private Units will be released to the Company to fund the working capital requirements of the Company.
1.5.2. Trust Account Proceeds . Prior to the liquidation of the Trust Account in the event the Company has not completed a Business Combination by the Termination Date (as defined in Section 7.6), interest income on the funds held in the Trust Account may be released to the Company from the Trust Account in accordance with the terms of the Trust Agreement to pay any taxes incurred by the Company and to fund the Company’s working capital corporate requirements, all as more fully described in the Prospectus.
2. | Representations and Warranties of the Company . The Company represents and warrants to the Underwriters as follows: |
2.1. | Filing of Registration Statement . |
2.1.1. Pursuant to the Act . The Company has filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-197187), including any related preliminary prospectus (the “ Preliminary Prospectus ”, including any prospectus that is included in the registration statement immediately prior to the effectiveness of the registration statement), for the registration of the Public Securities under the Act, which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Act, and the rules and regulations (the “ Regulations ”) of the Commission under the Act. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement became effective (“ Effective Date ”), including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to Rule 430A of the Regulations, together with the registration statement filed by the Company pursuant to Rule 462(b) under the Act registering additional Public Securities (the “ Rule 462(b) Registration Statement ”), is hereinafter called the “ Registration Statement ,” and the form of the final prospectus dated the Effective Date included in the Registration Statement (or, if applicable, the form of final prospectus containing information permitted to be omitted at the time of effectiveness by Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of the Regulations), is hereinafter called the “ Prospectus .” For purposes of this Agreement, “ Time of Sale ”, as used in the Act, means 5:00 p.m., New York City time, on the date of this Agreement. Prior to the Time of Sale, the Company prepared a preliminary prospectus, dated , 2014, for distribution by the Underwriters (the “ Statutory Prospectus ”). Other than the Registration Statement, together with any correspondence letters between the Company and/or counsel for the Company and the Commission, no other document with respect to the Registration Statement has heretofore been filed under the Act with the Commission. All of the Public Securities have been or will be registered under the Act pursuant to the Registration Statement. The Registration Statement has been declared effective by the Commission on the date hereof. If, subsequent to the date of this Agreement, the Company or the Representative has determined that at the Time of Sale the Statutory Prospectus included an untrue statement of a material fact or omitted a statement of material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and have agreed to provide an opportunity to purchasers of the Firm Units to terminate their old purchase contracts and enter into new purchase contracts, then the Statutory Prospectus will be deemed to include any additional information available to purchasers at the time of entry into the first such new purchase contract.
EarlyBirdCapital, Inc.
, 2014
Page 6 of 45
2.1.2. Pursuant to the Exchange Act . The Company has filed with the Commission a Registration Statement on Form 8-A (File Number 001- ) providing for the registration under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), of the Units, Common Stock, Rights and Warrants. The registration of the Units, Common Stock, Rights and Warrants under the Exchange Act has been declared effective by the Commission on the date hereof.
2.2. No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any foreign or state regulatory authority has issued any order or threatened to issue any order preventing or suspending the use of any Statutory Prospectus or Prospectus or has instituted or, to the best of the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
2.3. | Disclosures in Registration Statement . |
2.3.1. 10b-5 Representation . At the time of effectiveness of the Registration Statement (or at the effective time of any post-effective amendment to the Registration Statement) and at all times subsequent thereto up to the Closing Date, the Registration Statement, the Statutory Prospectus and the Prospectus contained or will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and did or will, in all material respects, conform to the requirements of the Act and the Regulations. On the Effective Date and at the Time of Sale, the Registration Statement did not, and on the Closing Date it will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and at the Time of Sale, the Statutory Prospectus does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representation and warranty made in this Section 2.3.1 does not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Underwriters expressly for use in the Registration Statement, the Statutory Prospectus or Prospectus or any amendment thereof or supplement thereto, which information, it is agreed, shall consist solely of the subsection captioned “Pricing of this Offering” included in the section captioned “Underwriting.”
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2.3.2. Disclosure of Agreements . The agreements and documents described in the Registration Statement, the Statutory Prospectus and the Prospectus conform to the descriptions thereof contained therein and there are no agreements or other documents required to be described in the Registration Statement, the Statutory Prospectus or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which its property or business is or may be bound or affected and (i) that is referred to in the Registration Statement or attached as an exhibit thereto, or (ii) is material to the Company’s business, has been duly and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the foreign, federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and none of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in breach or default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a breach or default thereunder. To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.3.3. Prior Securities Transactions . No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company since the date of the Company’s formation, except as disclosed in the Registration Statement.
2.3.4. Regulations . The disclosures in the Registration Statement, the Statutory Prospectus and the Prospectus concerning the effects of foreign, federal, state and local regulation on the Company’s business as currently contemplated are correct in all material respects and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
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2.4. | Changes After Dates in Registration Statement . |
2.4.1. No Material Adverse Change . Since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company; (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; (iii) no member of the Company’s board of directors or management has resigned from any position with the Company and (iv) no event or occurrence has taken place which materially impairs, or would likely materially impair, with the passage of time, the ability of the members of the Company’s board of directors or management to act in their capacities with the Company as described in the Registration Statement, the Statutory Prospectus and the Prospectus.
2.4.2. Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the Prospectus and except as may otherwise be indicated or contemplated herein or therein, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
2.5. Independent Accountants . UHY LLP (“ UHY ”), whose report is filed with the Commission as part of the Registration Statement and included in the Registration Statement, the Statutory Prospectus and the Prospectus, are independent registered public accountants as required by the Act, the Regulations and the Public Company Accounting Oversight Board (the “ PCAOB ”), including the rules and regulations promulgated by such entity. To the Company’s knowledge, UHY is duly registered and in good standing with the PCAOB. UHY has not, during the periods covered by the financial statements included in the Registration Statement, the Statutory Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.6. | Financial Statements; Statistical Data . |
2.6.1. Financial Statements . The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus, fairly present in all material respects the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with United States generally accepted accounting principles (“ GAAP ”), consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein in conformity with the Regulations. No other financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Statutory Prospectus or the Prospectus. The Registration Statement, the Statutory Prospectus and the Prospectus disclose all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, prospects, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. There are no pro forma or as adjusted financial statements which are required to be included in the Registration Statement, the Statutory Prospectus or the Prospectus in accordance with Regulation S-X of the Regulations which have not been included as so required.
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2.6.2. Statistical Data . The statistical, industry-related and market-related data included in the Registration Statement, the Statutory Prospectus and/or the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
2.7. Authorized Capital; Options, etc. The Company had at the date or dates indicated in each of the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be, duly authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Statutory Prospectus and the Prospectus. Based on the assumptions stated in the Registration Statement, the Statutory Prospectus and the Prospectus, the Company will have on the Closing Date the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Statutory Prospectus and the Prospectus, on the Effective Date and on the Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued Ordinary Shares or any security convertible into Ordinary Shares, or any contracts or commitments to issue or sell Ordinary Shares or any such options, warrants, rights or convertible securities.
2.8. | Valid Issuance of Securities, etc. |
2.8.1. Outstanding Securities . All issued and outstanding Ordinary Shares of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The outstanding Ordinary Shares conform to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus. All offers, sales and any transfers of the outstanding Ordinary Shares of the Company were at all relevant times either registered under the Act and the applicable state securities or Blue Sky laws or exempt from such registration requirements.
2.8.2. Securities To Be Sold .
2.8.2.1. The Public Securities have been duly authorized and reserved for issuance and when issued and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Public Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities has been duly and validly taken. The Public Securities conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
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2.8.2.2. When issued, the Representative’s Purchase Option, the Representative’s Rights and the Representative’s Warrants will constitute the valid and binding obligation of the Company to issue and sell, upon exercise thereof and payment of the exercise price therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof and such Representative’s Purchase Option, Representative’s Rights and Representative’s Warrants are enforceable against the Company in accordance with its terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under foreign, federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Ordinary Shares underlying the Representative’s Units, Representative’s Rights and Representative’s Warrants have been reserved for issuance upon the exercise of the Representative’s Purchase Option upon payment of the consideration therefore, and when issued in accordance with the terms thereof, will be duly and validly authorized, validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Representative’s Securities conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
2.8.2.3. The Private Units, the Rights included within the Private Units (the “ Private Rights ”) and the Warrants included within the Private Units (the “ Private Warrants ”) have been duly authorized and reserved for issuance and when issued and paid for in accordance with the Subscription Agreements, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Private Units, Private Rights and Private Warrants are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Private Units, Private Rights and Private Warrants has been duly and validly taken. The Private Units, Private Rights and Private Warrants conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
2.8.2.4. The Insider Shares have been duly authorized, duly and validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Insider Shares are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Insider Shares has been duly and validly taken. The Insider Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the Statutory Prospectus and the Prospectus, as the case may be.
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2.8.3. No Integration . Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities which are required to be “integrated” pursuant to the Act or the Regulations with the offer and sale of the Public Securities pursuant to the Registration Statement.
2.9. Registration Rights of Third Parties . Except as set forth in the Registration Statement, the Statutory Prospectus and the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
2.10. Validity and Binding Effect of Agreements . This Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the Services Agreement (as defined in Section 2.24.7 hereof), the Rights Agreement (as defined in Section 2.26 hereof), the Business Combination Marketing Agreement (as defined in Section 2.27 hereof), the Warrant Agreement (as defined in Section 2.28 hereof), the Registration Rights Agreement (as defined in Section 2.24.7) and the Representative’s Purchase Option have been duly and validly authorized by the Company and, when executed and delivered by the Company and the other parties thereto, will constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under foreign, federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.11. No Conflicts, etc. The execution, delivery, and performance by the Company of this Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the Services Agreement, the Rights Agreement, the Business Combination Marketing Agreement, the Warrant Agreement, the Registration Rights Agreement and the Representative’s Purchase Option, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a breach or violation of, or conflict with any of the terms and provisions of, or constitute a default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject except pursuant to the Trust Agreement; (ii) result in any violation of the provisions of the Amended and Restated Memorandum and Articles of Association or Bylaws of the Company; or (iii) violate any existing applicable statute, law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties, business or assets.
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2.12. No Defaults; Violations . No material default or violation exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any term or provision of its Amended and Restated Memorandum and Articles of Association or in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or businesses.
2.13. | Corporate Power; Licenses; Consents . |
2.13.1. Conduct of Business . The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business for the purposes described in the Registration Statement, the Statutory Prospectus and the Prospectus. The disclosures in the Registration Statement, the Statutory Prospectus and the Prospectus concerning the effects of foreign, federal, state and local regulation on this Offering and the Company’s business purpose as currently contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Since its formation and except as described in the Registration Statement, the Company has conducted no business and has incurred no liabilities other than in connection with its formation and in furtherance of the Offering.
2.13.2. Transactions Contemplated Herein . The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body, foreign or domestic, is required for the valid issuance, sale and delivery, of the Public Securities and Representative’s Securities and the consummation of the transactions and agreements contemplated by this Agreement, the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the Services Agreement, the Rights Agreement, the Business Combination Marketing Agreement, the Warrant Agreement, the Registration Rights Agreement and the Representative’s Purchase Option and as contemplated by the Registration Statement, the Statutory Prospectus and Prospectus, except with respect to applicable foreign, federal and state securities laws and the rules and regulations promulgated by the Financial Industry Regulatory Authority, Inc. (“ FINRA ”).
2.14. D&O Questionnaires . To the Company’s knowledge, all information contained in the questionnaires (the “ Questionnaires ”) completed by each of the Company’s officers, directors, 5% beneficial owners and owners of unregistered securities acquired within the past 180 days (the “ Directors/Officers ”) immediately prior to the initial filing of the Registration Statement and provided to the Representative, as such Questionnaires may have been updated from time to time and confirmed by each of the Directors/Officers, as well as the biographies previously provided to the Representative, is true and correct and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires to become inaccurate and incorrect.
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2.15. Litigation; Governmental Proceedings . There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any of the Directors/Officers or any of the Insiders, which has not been disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
2.16. Good Standing . The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of its jurisdiction of incorporation and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) (a “ Material Adverse Effect ”).
2.17. No Contemplation of a Business Combination . Prior to the date hereof, no Company Affiliate (as hereinafter defined) has, and as of the Closing, the Company and such Company Affiliates will not have: (a) had any specific Business Combination under consideration or contemplation; (b) directly or indirectly, contacted any potential operating assets, business or businesses which the Company may seek to acquire (each, a “ Target Business ”) or any owner, officer, director, manager, agent or representative thereof or had any substantive discussions, formal or otherwise, with respect to effecting any potential Business Combination with the Company or taken any measure, directly or indirectly, to locate a Target Business; or (c) engaged or retained any agent or other representative to identify or locate any Target Business for the Company.
2.18. Transactions Affecting Disclosure to FINRA .
2.18.1. Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any Company Affiliate with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any Insider that may affect the Underwriters’ compensation, as determined by FINRA.
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2.18.2. Except as described in the Registration Statement, the Statutory Prospectus and the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) to any FINRA member; or (iii) to any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the 180-day period prior to the initial filing date of the Registration Statement with the Commission.
2.18.3. To the Company’s knowledge, no officer or director or any direct or indirect beneficial owner of 5% or greater of any class of the Company’s securities, including the Sponsor and holders of securities to be purchased in the Private Placement (whether debt or equity, registered or unregistered, regardless of the time acquired or the source from which derived) (any such individual or entity, a “ Company Affiliate ”) is a member, a person associated, or affiliated with a member of FINRA.
2.18.4. To the Company’s knowledge, no Company Affiliate is an owner of stock or other securities of any member of FINRA (other than securities purchased on the open market).
2.18.5. To the Company’s knowledge, no Company Affiliate has made a subordinated loan to any member of FINRA.
2.18.6. No proceeds from the sale of the Public Securities or Private Units (excluding underwriting compensation) will be paid to any FINRA member, or any persons associated or affiliated with a member of FINRA, except as specifically authorized herein.
2.18.7. The Company has not issued any warrants or other securities, or granted any options, directly or indirectly to anyone who is a potential underwriter in the Offering or a related person (as defined by FINRA rules) of such an underwriter within the 180-day period prior to the initial filing date of the Registration Statement with the Commission, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
2.18.8. To the Company’s knowledge, no person to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Registration Statement with the Commission has any relationship or affiliation or association with any member of FINRA.
2.18.9. To the Company’s knowledge, no FINRA member intending to participate in the Offering has a conflict of interest (as defined by FINRA rules) with the Company.
2.18.10. Except with respect to the Representative in connection with the Offering, the Company has not entered into any agreement or arrangement (including, without limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date of the Registration Statement with the Commission, which arrangement or agreement provides for the receipt of any item of value and/or the transfer or issuance of any warrants, options, or other securities from the Company to a FINRA member, any person associated with a member (as defined by FINRA rules), any potential underwriters in the Offering and/or any related persons.
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2.19. Taxes.
2.19.1. There are no transfer taxes or other similar fees or charges under Cayman Islands law, U.S. federal law or the laws of any U.S. state or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Public Securities.
2.19.2. The Company has filed all non-U.S. and U.S. federal, state and local tax returns that are required to be a filed or has requested extensions thereof, except in any case in which the failure to so file would not have a Material Adverse Effect, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing in due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
2.19.3. The Company is not a Passive Foreign Investment Company for Federal income tax purposes.
2.20. Foreign Corrupt Practices Act . Neither the Company nor any of the Company Affiliates or any other person acting on behalf of the Company is aware of or has taken any action, directly or indirectly, that: (i) would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”) or otherwise subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding; (ii) if not done in the past, might reasonably be expected to have had a Material Adverse Effect or (iii) if not continued in the future, might reasonably be expected to materially and adversely affect the assets, business or operations of the Company, including, without limitation, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction). The Company’s internal accounting controls and procedures are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as amended.
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2.21. Currency and Foreign Transactions Reporting Act . The operations of the Company are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transaction Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
2.22. Bank Secrecy Act; Money Laundering; Patriot Act . Neither the Company, nor to the Company’s knowledge, any Company Affiliate, has violated: (i) the Bank Secrecy Act, as amended, (ii) the Money Laundering Laws or (iii) the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations promulgated under any such law, or any successor law.
2.23. Officers’ Certificate . Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or to its counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.24. Agreements With Company Affiliates .
2.24.1. Insider Letters . The Company has caused to be duly executed legally binding and enforceable agreements (except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (ii) as enforceability of any indemnification, contribution or non-compete provision may be limited under foreign, federal and state securities laws, and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) in the form annexed as an exhibit to the Registration Statement (the “ Insider Letters ”), pursuant to which each of the Company Affiliates agrees to certain matters, including but not limited to, the voting of Ordinary Shares held by them and certain matters described as being agreed to by them under the “Proposed Business” section of the Registration Statement, the Statutory Prospectus and Prospectus.
2.24.2. Subscription Agreements. The Sponsor and the Representative have executed and delivered subscription agreements, the form of which is annexed as an exhibit to the Registration Statement (the “ Subscription Agreements ”), pursuant to which the Sponsor and the Representative have agreed, among other things, to purchase on the Closing Date an aggregate of 320,000 and 30,000 Private Units, respectively, in the Private Placement. Pursuant to the Subscription Agreements, each of the purchasers has waived any and all rights and claims they may have to any proceeds, and any interest thereon, held in the Trust Account in respect of the Ordinary Shares included in the Private Units in the event that a Business Combination is not consummated and the Trust Account is liquidated in accordance with the terms of the Trust Agreement.
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2.24.3. Escrow Agreement . The Company has caused the Insiders to enter into an escrow agreement (the “ Escrow Agreement ”) with CST&T substantially in the form filed as an exhibit to the Registration Statement whereby the Insider Shares will be held in escrow by CST&T for a period (the “ Escrow Period ”) commencing on the Effective Date and expiring (i) with respect to 50% of the Insider Shares, on the earlier of the one year anniversary of the consummation of the Business Combination and the date on which the closing price of the Common Stock exceeds $12.50 per share for any 20 trading days within a 30-trading day period following the consummation of the Business Combination, and (ii) with respect to the remaining 50% of the Insider Shares, on the one year anniversary of the consummation of the Business Combination, or earlier in each case in certain limited situations. During the Escrow Period, such parties shall be prohibited from selling or otherwise transferring such Insider Shares, except in certain limited circumstances set forth in the Escrow Agreement. To the Company’s knowledge, the Escrow Agreement is enforceable against the Insiders and will not, with or without the giving of notice or the lapse of time or both, result in a breach of, or conflict with, any of the terms and provisions of, or constitute a default under, an agreement or instrument to which any of the Insiders are a party.
2.24.4. Non-Competition/Solicitation . To the Company’s knowledge, no Directors/Officers are subject to any non-competition agreement or non-solicitation agreement with any employer or prior employer which could materially affect each Director’s/Officer’s ability to be and act in the capacity of a Director/Officer of the Company.
2.24.5. Loans . The Sponsor has made a loan to the Company in the aggregate amount of $125,000, as such amount may be increased as described in the Registration Statement (the “ Insider Loans ”) pursuant to a promissory note substantially in the form annexed as an exhibit to the Registration Statement. The Insider Loans do not bear any interest and are repayable by the Company on the consummation of the Offering.
2.24.6. Registration Rights Agreement . The Company and the Insiders have entered into a registration rights agreement (“ Registration Rights Agreement ”) substantially in the form annexed as an exhibit to the Registration Statement, whereby the Insiders will be entitled to certain registration rights with respect to their securities, as set forth in such Registration Rights Agreement and described more fully in the Registration Statement.
2.24.7. Administrative Services . The Company has entered into an agreement (“Services Agreement”) with the Sponsor substantially in the form annexed as an exhibit to the Registration Statement pursuant to which the Sponsor will make available to the Company, on the terms and subject to the conditions set forth therein, general and administrative services including office space, utilities and secretarial support for the Company’s use for $10,000 per month payable until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account.
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2.25. Investment Management Trust Agreement . The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering and the Private Placement substantially in the form filed as an exhibit to the Registration Statement, pursuant to which the funds held in the Trust Account may be released under limited circumstances. The Trust Agreement shall not be amended, modified or otherwise changed in any way that modifies the rights or obligations of the Representative without the prior written consent of the Representative, such consent not to be unreasonably withheld.
2.26. Rights Agreement . The Company has entered into an agreement with respect to the Rights that are to be issued in the Offering with CST&T substantially in the form filed as an exhibit to the Registration Statement (the “ Rights Agreement ”).
2.27. Business Combination Marketing Agreement . The Company and the Representative have entered into a separate business combination marketing agreement substantially in the form filed as an exhibit to the Registration Statement (the “ Business Combination Marketing Agreement ”).
2.28. Warrant Agreement . The Company has entered into a warrant agreement with respect to the Warrants, Representative’s Warrants and Private Warrants with CST&T substantially in the form filed as an exhibit to the Registration Statement (the “ Warrant Agreement ”) .
2.29. Investments . No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company Act of 1940 (“ Investment Company Act ”)) of the Company’s total assets (exclusive of cash items and “Government Securities,” as defined in Section 2(a)(16) of the Investment Company Act) consist of, and no more than 45% of the Company’s net income after taxes is derived from, securities other than Government Securities.
2.30. Investment Company Act . The Company is not required, and upon the issuance and sale of the Public Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be required, to register as an “investment company” under the Investment Company Act.
2.31. Subsidiaries . The Company does not own an interest in any corporation, partnership, limited liability company, joint venture, trust or other business entity.
2.32. Related Party Transactions . No relationship, direct or indirect, exists between or among any of the Company or any Company Affiliate, on the one hand, and any director, officer, shareholder, customer or supplier of the Company or any Company Affiliate, on the other hand, which is required by the Act, the Exchange Act or the Regulations to be described in the Registration Statement, the Statutory Prospectus and the Prospectus, which is not so described as required. There are no outstanding loans, advances or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus. The Company has not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or officer of the Company.
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2.33. No Influence . The Company has not offered, or caused the Underwriters to offer, the Firm Units to any person or entity with the intention of unlawfully influencing: (a) a customer or supplier of the Company or any affiliate of the Company to alter the customer’s or supplier’s level or type of business with the Company or such affiliate or (b) a journalist or publication to write or publish favorable information about the Company or any such affiliate.
2.34. Sarbanes-Oxley . The Company is in material compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended (“ SOX ”), and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any governmental or self regulatory entity or agency, that are applicable to it as of the date hereof.
2.35. Nasdaq Eligibility . As of the Effective Date, the Public Securities have been approved for listing on the Nasdaq Capital Markets (“ NASDAQ ”), subject to official notice of issuance and evidence of satisfactory distribution. There is and has been no failure on the part of the Company or any of the Company's directors or officers, in their capacities as such, to comply with (as and when applicable), and immediately following the effectiveness of the Registration Statement the Company will be in compliance with, the NASDAQ Marketplace Rules, as amended.
2.36. Emerging Growth Status . From the date of the Company’s formation through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”).
2.37. Testing-The-Waters Communications . The Company (a) has not engaged in any Testing-the-Waters Communication and (b) has not authorized anyone to engage in Testing-the-Waters Communications. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act.
2.38. Definition of “Knowledge” . As used in herein, the term “ knowledge of the Company ” (or similar language) shall mean the knowledge of the Company’s Directors/Officers, with the assumption that such officers and directors shall have made reasonable and diligent inquiry of the matters presented.
3. | Covenants of the Company . The Company covenants and agrees as follows: |
3.1. Amendments to Registration Statement . The Company will deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and shall not file any such amendment or supplement to which the Representative shall reasonably object in writing.
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3.2. Federal Securities Laws .
3.2.1. Compliance . During the time when a prospectus is required to be delivered under the Act, the Company will use all reasonable efforts to comply with all requirements imposed upon it by the Act, the Regulations and the Exchange Act and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus relating to the Public Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Statutory Prospectus and the Prospectus, as then amended or supplemented includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary during such period to amend the Registration Statement or amend or supplement the Statutory Prospectus and Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission, subject to Section 3.1 hereof, an appropriate amendment to the Registration Statement or amendment or supplement to the Statutory Prospectus and Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
3.2.2. Filing of Final Prospectus . The Company will promptly file the Prospectus (in form and substance satisfactory to the Representative) with the Commission pursuant to the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act Registration . For a period of five years from the Effective Date (except in connection with a going private transaction), or until such earlier time upon which the Trust Account is to be liquidated if a Business Combination has not been consummated by the Termination Date: the Company (i) will use its best efforts to maintain the registration of the Ordinary Shares and Warrants under the provisions of the Exchange Act and (ii) will not deregister the Ordinary Shares or Warrants under the Exchange Act without the prior written consent of the Representative.
3.2.4. Free Writing Prospectuses . The Company represents and agrees that it has not made and will not make any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, without the prior consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus .” The Company represents that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied with and will comply with the applicable requirements of Rule 433 of the Act, including timely Commission filing where required, legending and record keeping.
3.2.5. Sarbanes-Oxley Compliance . As soon as it is legally required to do so, the Company shall take all actions necessary to obtain and thereafter maintain material compliance with each applicable provision of SOX and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any other governmental or self regulatory entity or agency with jurisdiction over the Company.
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3.3. Emerging Growth Company Status. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the earlier of five years after the consummation of the Company’s initial Business Combination, or the liquidation of the Trust Account if a Business Combination is not consummated by the Termination Date.
3.4. Delivery of Materials to Underwriters . The Company will deliver to each of the several Underwriters, without charge and from time to time during the period when a prospectus is required to be delivered under the Act or the Exchange Act, such number of copies of each Statutory Prospectus, the Prospectus and all amendments and supplements to such documents as such Underwriters may reasonably request.
3.5. Effectiveness and Events Requiring Notice to the Representative . The Company will use its best efforts to cause the Registration Statement to remain effective and will notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any foreign or state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in this Section 3.5 hereof that, in the judgment of the Company or its counsel, makes any statement of a material fact made in the Registration Statement, the Statutory Prospectus or the Prospectus untrue or that requires the making of any changes in the Registration Statement, the Statutory Prospectus and Prospectus in order to make the statements therein, (with respect to the Prospectus and the Statutory Prospectus and in light of the circumstances under which they were made), not misleading. If the Commission or any foreign or state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
3.6. Review of Financial Statements . Until the earlier of five years from the Effective Date, or until the liquidation of the Trust Account if a Business Combination is not consummated by the Termination Date, the Company, at its expense, shall cause its regularly engaged independent certified public accountants to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing of quarterly financial information to stockholders.
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3.7. Affiliated Transactions .
3.7.1. Business Combinations . The Company will not consummate a Business Combination with an entity that is affiliated with any Insider unless in each case the Company obtains an opinion from an independent investment banking firm that the Business Combination is fair to the Company’s shareholders from a financial point of view and a majority of the Company’s disinterested and independent directors (if there are any) approve such transaction.
3.7.2. Services Agreement . The Company has entered into the Services Agreement with the Sponsor pursuant to which the Sponsor will make available to the Company general and administrative services including office space, utilities and secretarial support for the Company’s use for $10,000 per month, subject to adjustment as provided for in the Services Agreement. Prior to the consummation of a Business Combination, the Company shall not enter into any other arrangement for the provision of such services with any Insider that will require the Company to pay in excess of $10,000 per month for such services.
3.7.3. Compensation . Except as disclosed in the Registration Statement, the Company shall not pay any Insider or Company Affiliate or any of their affiliates any fees or compensation for services rendered to the Company prior to, or in connection with, either this Offering or the Business Combination.
3.8. Secondary Market Trading and Standard & Poor’s . If the Company does not maintain the listing of the Public Securities on NASDAQ or another national securities exchange, the Company will (i) apply to be included in Standard & Poor’s Daily News and Corporation Records Corporate Descriptions for a period of five years from the consummation of a Business Combination, (ii) take such commercially reasonable steps as may be necessary to obtain a secondary market trading exemption for the Company’s securities in the State of California and (iii) take such other action as may be reasonably requested by the Representative to obtain a secondary market trading exemption in such other states as may be requested by the Representative; provided that no qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or to taxation as a foreign corporation doing business in such jurisdiction.
3.9. Investor Relations Firm . Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain an investor relations firm with the expertise necessary to assist the Company both before and after the consummation of the Business Combination for a term to be agreed upon by the Company and the Representative.
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3.10. Reports to the Representative .
3.10.1. Periodic Reports, etc. For a period of five years from the Effective Date or until such earlier time upon which the Company is required to be liquidated and dissolved, the Company will furnish to the Representative and its counsel copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities, and promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy of each Current Report on Form 8-K and any Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company; (iv) five copies of each registration statement filed by the Company with the Commission under the Securities Act; and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request; provided that the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative and its counsel in connection with the Representative’s receipt of such information. Documents filed with the Commission pursuant to Electronic Data Gathering, Analysis and Retrieval System ( “EDGAR” ) shall be deemed to have been delivered to the Representative pursuant to this section.
3.10.2. For a period of five years following the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain a transfer agent, warrant agent and rights agent acceptable to the Representative. CST&T is acceptable to the Underwriters.
3.11. Payment of Expenses . The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at Closing Date, or such later date as may be agreed to by the Representative in its sole discretion, all fees and expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement, the Statutory Prospectus, and the final Prospectus and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters; (ii) the printing, engraving, issuance and delivery of the Units, Ordinary Shares, Rights and Warrants included in the Units, including any transfer or other taxes payable thereon; (iii) NASDAQ filing fees or, if necessary, the qualification of the Public Securities under state or foreign securities or Blue Sky laws; (iv) fees and expenses (including legal fees of the Representative not to exceed $15,000) incurred in registering the Offering with FINRA; (v) fees and disbursements of the transfer and warrant agent; (vi) the preparation and delivery of transaction lucite cubes or similar commemorative items in a style and quantity as reasonably requested by the Representative (not to exceed $3,000); (vii) all costs and expenses of the Company associated with “road show” marketing and “due diligence” trips for the Company’s management to meet with prospective investors, including without limitation, all travel, food and lodging expenses associated with such trips incurred by the Company or such management; and (viii) all other costs and expenses customarily borne by an issuer incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 3.11. The Company also agrees that it will pay for an investigative search firm of the Representative’s choice to conduct an investigation of the principals of the Company as shall be mutually selected by the Representative and the Company (not to exceed $3,000 per principal). The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date the expenses set forth above (which shall be mutually agreed upon between the Company and the Representative prior to Closing) to be paid by the Company to the Representative and others. As of the date hereof, the Company has paid $25,000 to the Representative. The Representative shall retain such part of the advance previously paid as shall equal its actual out-of-pocket expenses and refund the balance, if any. Additionally, if the Offering is not consummated because the Company has materially breached any of its obligations hereunder, then the Company shall reimburse the Representative in full for its out-of-pocket accountable expenses actually incurred through such date, including, without limitation, fees of counsel to the Representative (which legal fees shall not exceed $100,000).
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3.12. Application of Net Proceeds . The Company will apply the net proceeds from this Offering received by it in a manner substantially consistent with the application described under the caption “Use of Proceeds” in the Prospectus.
3.13. Delivery of Earnings Statements to Security Holders . The Company will make generally available to its security holders as soon as practicable, but not later than the first day of the sixteenth full calendar month following the Effective Date, an earnings statement (which need not be certified by independent public or independent certified public accountants unless required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Act) covering a period of at least twelve consecutive months beginning after the Effective Date.
3.14. Notice to FINRA .
3.14.1. Assistance with Business Combination . For a period of ninety days following the Effective Date, in the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a Business Combination candidate or to provide any similar Business Combination-related services, the Company will provide the following information (the “ Business Combination Information ”) to the Representative: (i) complete details of all services and copies of agreements governing such services (which details or agreements may be appropriately redacted to account for privilege or confidentiality concerns); and (ii) justification as to why the person or entity providing the Business Combination-related services should not be considered an “underwriter and related person” with respect to the Company’s initial public offering, as such term is defined in Rule 5110 of FINRA’s Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in the proxy statement which the Company will file for purposes of soliciting shareholder approval for the Business Combination. Upon the Company’s delivery of the Business Combination Information to the Representative, the Company hereby expressly authorizes the Representative to provide such information directly to FINRA as a result of representations the Representative have made to FINRA in connection with the Offering.
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3.14.2. Broker/Dealer . In the event the Company intends to register as a broker/dealer, merge with or acquire a registered broker/dealer, or otherwise become a member of FINRA, it shall promptly notify FINRA.
3.15. Stabilization . Neither the Company, nor, to its knowledge, any of its employees, officers, directors or shareholders (without the consent of the Representative) has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
3.16. Internal Controls . From and after the Closing Date, the Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.17. Accountants . For a period of five years from the Effective Date or until such earlier time upon which the Trust Account is required to be liquidated, the Company shall retain UHY or other independent public accountants reasonably acceptable to the Representative.
3.18. Form 8-K’s . The Company has retained UHY to audit the financial statements of the Company as of the Closing Date (the “ Audited Financial Statements ”) reflecting the receipt by the Company of the proceeds of the Offering and the Private Placement. Within four (4) Business Days of the Closing Date, the Company shall file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s Audited Financial Statements. If the Over-Allotment Option has not been exercised on the Effective Date, the Company will also file an amendment to the Form 8-K, or a new Form 8-K, to provide updated financial information of the Company to reflect the exercise and consummation of the Over-Allotment Option.
3.19. FINRA . Until the Option Closing Date, if any, the Company shall advise the Representative if it is aware that any 5% or greater shareholder of the Company becomes an affiliate or associated person of a FINRA member participating in the distribution of the Public Securities.
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3.20. Corporate Proceedings . All corporate proceedings and other legal matters necessary to carry out the provisions of this Agreement and the transactions contemplated hereby shall have been done to the reasonable satisfaction to counsel for the Underwriters.
3.21. Investment Company . The Company shall cause the proceeds of the Offering to be held in the Trust Account to be invested only as set forth in the Trust Agreement as in effect on the date hereof and disclosed in the Prospectus. The Company will otherwise conduct its business in a manner so that it will not become subject to the Investment Company Act. Furthermore, once the Company consummates a Business Combination, it will be engaged in a business other than that of investing, reinvesting, owning, holding or trading securities.
3.22. Press Releases . The Company agrees that it will not issue press releases or engage in any other publicity, without the Representative’s prior written consent (not to be unreasonably withheld), for a period of twenty-five (25) days after the Closing Date; provided that in no event shall the Company be prohibited from issuing any press release or engaging in any other publicity required by law.
3.23. Electronic Prospectus . The Company shall cause to be prepared and delivered to the Representative, at its expense, promptly, but in no event later than two (2) Business Days from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “ Electronic Prospectus ” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the Ordinary Shares for at least the period during which a Prospectus relating to the Ordinary Shares is required to be delivered under the Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to EDGAR, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the period when a prospectus relating to the Ordinary Shares is required to be delivered under the Act, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
3.24. Future Financings . The Company agrees that neither it, nor any successor or subsidiary of the Company, will consummate any public or private equity or debt financing prior to or in connection with the consummation of a Business Combination, unless all investors in such financing expressly waive, in writing, any rights in or claims against the Trust Account.
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3.25. NASDAQ Maintenance . Until the consummation of a Business Combination, the Company will use commercially reasonable efforts to maintain the listing by NASDAQ of the Units and the Ordinary Shares, Rights and Warrants included within the Units.
3.26. Private Placement Proceeds . On the Closing Date, the Company shall cause to be deposited $3,500,000 of proceeds from the Private Placement into the Trust Account. On the Option Closing Date, if any, the Company shall cause to be deposited an amount of additional proceeds from the additional Private Units sold on the Option Closing Date into the Trust Account such that the amount of funds in the Trust Account shall be $10.10 per Public Share sold in the Offering.
3.27. Reservation of Shares . The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable pursuant to the Rights, the Private Rights, the Representative’s Rights, the Warrants, the Private Warrants and the Representative’s Warrants outstanding from time to time.
4. | Conditions. |
4.1. Conditions of Underwriters’ Obligations . The obligations of the several Underwriters to purchase and pay for the Public Securities, as provided herein, shall be subject to the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of the Closing Date and the Option Closing Date, if any, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof and to the performance by the Company of its obligations hereunder and to the following conditions:
4.1.1. Regulatory Matters .
4.1.1.1. Effectiveness of Registration Statement . The Registration Statement shall have become effective not later than 5:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for the purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with.
4.1.1.2. FINRA Clearance . By the Effective Date, the Representative shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.1.3. No Commission Stop Order . At the Closing Date, the Commission has not issued any order or threatened to issue any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any part thereof, and has not instituted or, to the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
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4.1.1.4. NASDAQ Listing . The Public Securities shall have been approved for listing on NASDAQ, subject to official notice of issuance and evidence of satisfactory distribution.
4.1.2. Company Counsel Matters .
4.1.2.1. Opinion of Company Counsel . On each of the Closing Date or the Option Closing Date, if any, the Representative shall have received the favorable opinions of Ellenoff Grossman & Schole LLP, U.S. counsel to the Company, and Ogier, British Virgin Islands counsel to the Company, addressed to the Representative as representative for the several Underwriters and in form mutually agreed to by the Company and the Representative.
4.1.2.2. Reliance . In rendering such opinions, such counsels may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdiction having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to the Underwriters’ counsel if requested. The opinions of counsels for the Company and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Underwriters in its opinion delivered to the Underwriters.
4.1.3. Cold Comfort Letter . At the time this Agreement is executed, and at the Closing Date and Option Closing Date, if any, the Representative shall have received a letter, addressed to the Representative as representative for the several Underwriters and in form and substance satisfactory in all respects (including the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to the Representative from UHY dated, respectively, as of the date of this Agreement and as of the Closing Date and Option Closing Date, if any:
(i) Confirming that they are independent accountants with respect to the Company within the meaning of the Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Registration Statement and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
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(ii) Stating that in their opinion the financial statements of the Company included in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the published Regulations thereunder;
(iii) Stating that, on the basis of a limited review which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the shareholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that: (a) the unaudited financial statements of the Company included in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations or are not fairly presented in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement, the Statutory Prospectus and the Prospectus; or (b) at a date immediately prior to the Effective Date or Closing Date, as the case may be, there was any change in the capital stock or long-term debt of the Company, or any decrease in the shareholders’ equity of the Company as compared with amounts shown in the April 18, 2014 balance sheet included in the Registration Statement, other than as set forth in or contemplated by the Registration Statement, or, if there was any decrease, setting forth the amount of such decrease, and (c) during the period from June 10, 2014 to a specified date immediately prior to the Effective Date or Closing Date, as the case may be, there was any changes in revenues, net earnings (losses), or net earnings (losses) per share of Common Stock, in each case as compared with the Statement of Operations for the period from April 8, 2014 (Inception) to June 10, 2014 included in the Registration Statement, or, if there was any such change, setting forth the amount of such change;
(iv) Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Registration Statement in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement; and
(v) Statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request.
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4.1.4. Officers’ Certificates .
4.1.4.1. Officers’ Certificate . As of each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Chairman of the Board or President and the Secretary or Assistant Secretary of the Company (in their capacities as such), respectively, to the effect that the Company has performed all covenants and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date and that the conditions set forth in Section 4.1.5 hereof have been satisfied as of such date and that, as of Closing Date, the representations and warranties of the Company set forth in Section 2 hereof are true and correct. In addition, the Representative will have received such other and further certificates of officers of the Company as the Representative may reasonably request.
4.1.4.2. Secretary’s Certificate . As of each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Secretary or Assistant Secretary of the Company, respectively, certifying: (i) that the Amended and Restated Memorandum and Articles of Association and Bylaws of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions relating to the Offering are in full force and effect and have not been modified; (iii) all correspondence between the Company or its counsel and the Commission; (iv) all correspondence between the Company or its counsel and NASDAQ; and (v) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.1.5. No Material Changes . Prior to each of the Closing Date and the Option Closing Date, if any: (i) there shall have been no material adverse change or development involving a material adverse change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Statutory Prospectus and Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Company Affiliate before or by any court or foreign, federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement, the Statutory Prospectus and Prospectus; (iii) no stop order shall have been issued under the Act against the Company and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Statutory Prospectus and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and shall conform in all material respects to the requirements of the Act and the Regulations, and none of the Registration Statement, the Statutory Prospectus or the Prospectus, or any amendment or supplement thereto shall contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Statutory Prospectus and Prospectus, in light of the circumstances under which they were made), not misleading.
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4.1.6. Delivery of Agreements . On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Subscription Agreements, the Escrow Agreement, the Services Agreement, the Rights Agreement, the Business Combination Marketing Agreement, the Warrant Agreement, the Registration Rights Agreement and all of the Insider Letters. On the Closing Date, the Company shall have delivered to the Representative the Representative’s Purchase Option.
4.1.6.1. In connection with a Business Combination, the Company will not authorize any disbursement of the funds in the Trust Account without the prior written approval of the Representative (which will not be unreasonably withheld).
4.1.7. Private Units . On the Closing Date and the Option Closing Date, the Sponsor and Representative shall have purchased the Private Units as provided for in the Subscription Agreements and the purchase price for such securities shall be deposited into the Trust Account.
5. | Indemnification . |
5.1. Indemnification of Underwriters .
5.1.1. General . Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each of the Underwriters and each dealer selected by the Representative that participates in the offer and sale of the Public Securities (each a “ Selected Dealer ”) and each of their respective directors, officers, partners and employees and each person, if any, who controls any such Underwriter or Selected Dealer (“ Controlling Person ”) within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and its counsel, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriters and the Company or between any of the Underwriters and any third party or otherwise) to which they or any of them may become subject under the Act, the Exchange Act or any other foreign, federal, state or local statute, law, rule, regulation or ordinance or at common law or otherwise or under the laws, rules and regulation of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) any Preliminary Prospectus, the Registration Statement, or the Prospectus (as from time to time each may be amended and supplemented); (ii) in any post-effective amendment or amendments or any new registration statement and prospectus relating to any of the Public Securities; or (iii) any application or other document or written communication (in this Section 5 collectively called “ application ”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities under the securities laws thereof or filed with the Commission, any foreign or state securities commission or agency, NASDAQ, the NYSE MKT LLC, the OTC Bulletin Board or any securities exchange (in each case other than statements contained in the section captioned “Selling Restrictions”); or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Company with respect to an Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement the Prospectus or any amendment or supplement thereof, or in any application, as the case may be, which furnished written information, it is expressly agreed, consists solely of the information described in clause (ii) of the last sentence of Section 2.3.1. With respect to any untrue statement or omission or alleged untrue statement or omission made in the Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter to the extent that any loss, liability, claim, damage or expense of such Underwriter results from the fact that a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Public Securities to such person as required by the Act and the Regulations, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under Section 3.4 hereof. The Company agrees promptly to notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the issue and sale of the Public Securities or in connection with the Preliminary Prospectus, the Registration Statement or the Prospectus.
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5.1.2. Procedure . If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to Section 5.1.1, such Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter) and payment of actual expenses. Such Underwriter or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action; (ii) the Company shall not have employed counsel to have charge of the defense of such action; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter and/or controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if the Underwriter or controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
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5.2. Indemnification of the Company . Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers, and employees and agents who control the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and its counsel, against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to such Underwriter by or on behalf of the Underwriter expressly for use in such Registration Statement, Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or in any such application, which furnished written information, it is expressly agreed, consists solely of the information described in clause (ii) of the last sentence of Section 2.3.1. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Prospectus or any amendment or supplement thereto or any application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2.
5.3. | Contribution . |
5.3.1. Contribution Rights . In order to provide for just and equitable contribution under the Act in any case in which (i) any person entitled to indemnification under this Section 5 makes claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 5 provides for indemnification in such case, or (ii) contribution under the Act, the Exchange Act or otherwise may be required on the part of any such person in circumstances for which indemnification is provided under this Section 5 but is unavailable, then, and in each such case, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the initial offering price appearing thereon and the Company is responsible for the balance; provided, that, no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 5.3.1, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Public Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay in respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section, each director, officer and employee of an Underwriter or the Company, as applicable, and each person, if any, who controls an Underwriter or the Company, as applicable, within the meaning of Section 15 of the Act shall have the same rights to contribution as the Underwriters or the Company, as applicable.
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5.3.2. Contribution Procedure . Within fifteen days after receipt by any party to this Agreement (or its representatives) of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (“ contributing party ”), notify the contributing party of the commencement thereof, but the omission to so notify the contributing party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a contributing party or its representatives of the commencement thereof within the aforesaid fifteen days, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. Any such contributing party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution without the written consent of such contributing party. The contribution provisions contained in this Section are intended to supersede, to the extent permitted by law, any right to contribution under the Act, the Exchange Act or otherwise available. The Underwriters’ obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. | Default by an Underwriter . |
6.1. Default Not Exceeding 10% of Firm Units . If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Units and if the number of the Firm Units with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Units that all Underwriters have agreed to purchase hereunder, then such Firm Units to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2. Default Exceeding 10% of Firm Units . In the event that the default addressed in Section 6.1 above relates to more than 10% of the Firm Units, the Representative may, in its discretion, arrange for it or for another party or parties to purchase such Firm Units to which such default relates on the terms contained herein. If within one (1) Business Day after such default relating to more than 10% of the Firm Units the Representative does not arrange for the purchase of such Firm Units, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Representative to purchase said Firm Units on such terms. In the event that neither the Representative nor the Company arrange for the purchase of the Firm Units to which a default relates as provided in this Section 6, this Agreement may be terminated by the Representative or the Company without liability on the part of the Company (except as provided in Sections 3.12 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to the Company for damages occasioned by its default hereunder.
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6.3. Postponement of Closing Date . In the event that the Firm Units to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement and/or the Prospectus, as the case may be, or in any other documents and arrangements, and the Company agrees to file promptly any amendment to, or to supplement, the Registration Statement and/or the Prospectus, as the case may be, that in the reasonable opinion of counsel for the Underwriters may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such securities.
7. Additional Covenants .
7.1. Additional Shares or Options . Except as described in the Registration Statement, the Company hereby agrees that until the Company consummates a Business Combination, it shall not issue any Ordinary Shares or any options or other securities convertible into Ordinary Shares or any shares of preferred stock which participate in any manner in the Trust Account or which vote on a Business Combination.
7.2. | Trust Account Waiver Acknowledgments . |
7.2.1. The Company hereby agrees that, prior to commencing its due diligence investigation of any Target Business or obtaining the services of any vendor, it will use its best efforts to have such Target Business or vendor acknowledge in writing, whether through a letter of intent, memorandum of understanding, agreement in principle or other similar document (and subsequently acknowledges the same in any definitive document replacing any of the foregoing), that (a) it has read the Prospectus, and understands that the Company has established the Trust Account, initially in an amount of $60,600,000 for the benefit of the Public Shareholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Shareholders in the event of the conversion of their shares upon consummation of a Business Combination or amendment to the Company’s Amended and Restated Memorandum and Articles of Association relating to pre-Business Combination activity, (ii) to the Public Shareholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination, and (b) for and in consideration of the Company (1) agreeing to evaluate such Target Business for purposes of consummating a Business Combination with it or (2) agreeing to engage the services of the vendor, as the case may be, such Target Business or vendor agrees that it does not have any right, title, interest or claim of any kind in or to any monies of the Trust Account (“ Claim ”) and waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The foregoing letters shall substantially be in the form attached hereto as Exhibit A and B , respectively.
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7.2.2. Each of the Underwriters agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and will not seek recourse against the Trust Account for any reason whatsoever.
7.3. Insider Letters . The Company shall not take any action or omit to take any action which would cause a breach of any of the Insider Letters executed between each Company Affiliate and the Representative and will not allow any amendments to, or waivers of, such Insider Letters without the prior written consent of the Representative.
7.4. Amended and Restated Memorandum and Articles of Association . The Company shall not take any action or omit to take any action that would cause the Company to be in breach or violation of its Amended and Restated Memorandum and Articles of Association.
7.5. Tender Offer, Proxy and Other Information . The Company shall provide the Representative with copies of all proxy or tender offer documentation and other information and all related material sent to Public Shareholders in connection with a Business Combination. In addition, the Company shall furnish any other state in which the Offering was registered, such information as may be requested by such state.
7.6. Acquisition/Liquidation of Trust Account Procedure . The Company agrees that it will comply with its Amended and Restated Memorandum and Articles of Association in connection with the consummation of a Business Combination or the failure to consummate a Business Combination within 18 months from the Closing Date (or 24 months from the Closing Date if the Company takes advantage of up to two (2) 3-month extensions (each an “ Extension ,” and collectively, the “ Extensions ”) described in the Prospectus) (either such date being referred to as the “ Termination Date ”).
7.7. Rule 419 . The Company agrees that it will use its best efforts to prevent the Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business Combination, including, but not limited to, using its best efforts to prevent any of the Company’s outstanding securities from being deemed to be a “penny stock” as defined in Rule 3a-51-1 under the Exchange Act during such period.
7.8. Presentation of Potential Target Businesses . The Company shall cause each of the Company Affiliates to agree that, in order to minimize potential conflicts of interest which may arise from multiple affiliations, the Company Affiliates will present to the Company for its consideration, prior to presentation to any other person or company, any suitable opportunity to acquire an operating business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Trust Account, subject to any pre-existing fiduciary obligations the Company Affiliates might have.
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7.9. Target Net Assets . The Company agrees that the Target Business that it acquires must have a fair market value equal to at least 80% of the balance in the Trust Account at the time of signing the definitive agreement for the Business Combination with such Target Business. The fair market value of such business must be determined by the Board of Directors of the Company based upon standards generally accepted by the financial community, such as actual and potential sales, earnings, cash flow and book value. If the Board of Directors of the Company is not able to independently determine that the target business meets such fair market value requirement, the Company will obtain an opinion from an unaffiliated, independent investment banking firm, or another independent entity that commonly renders valuation opinions on the type of Target Business the Company is seeking to acquire. The Company is not required to obtain such an opinion as to the fair market value if the Company’s Board of Directors independently determines that the Target Business does have sufficient fair market value.
8. Representations and Agreements to Survive Delivery . Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements at the Closing Date or Option Closing Date, as applicable, and such representations, warranties and agreements of the Underwriters and Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter, the Company or any controlling person, and shall survive termination of this Agreement or the issuance and delivery of the Public Securities to the several Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the Closing Date, at which time the representations, warranties and agreements shall terminate and be of no further force and effect.
9. Effective Date of This Agreement and Termination Thereof .
9.1. Effective Date . This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission.
9.2. Termination . The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date: (i) if any domestic or international event or act or occurrence has materially disrupted or, in the Representative’s sole opinion, will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange, the NYSE MKT LLC, NASDAQ or on the OTC Bulletin Board (or successor trading market) shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required on the OTC Bulletin Board or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s sole opinion, make it inadvisable to proceed with the delivery of the Ordinary Shares, or (vii) if any of the Company’s representations, warranties or covenants hereunder are breached, or (viii) if the Representative shall have become aware after the date hereof of a Material Adverse Effect on the Company, or such adverse material change in general market conditions, including, without limitation, as a result of terrorist activities after the date hereof, as in the Representative’s sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Ordinary Shares or to enforce contracts made by the Underwriters for the sale of the Ordinary Shares.
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9.3. Expenses . In the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms herein, the obligations of the Company to pay the out of pocket expenses related to the transactions contemplated herein shall be governed by Section 3.11 hereof.
9.4. Indemnification . Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way effected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
10. Miscellaneous .
10.1. Notices . All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed by certified mail (with return receipt), delivered by hand or reputable overnight courier, delivered by facsimile transmission (with printed confirmation of receipt) and confirmed, or by electronic transmission via PDF and shall be deemed given when so mailed, delivered, or faxed or transmitted (or if mailed, five days after such mailing):
If to the Representative:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27 th Floor
New
York, NY 10016
Fax No.: (212) 661-4936
Attn: Steven Levine
Email: slevine@ebcap.com
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With a copy (which shall not constitute notice) to:
Graubard Miller
405 Lexington Avenue
New York, New York 10174
Fax No.: (212) 818-8881
Attn: David Alan Miller, Esq.
Email: dmiller@graubard.com
If to the Company, to:
DT Asia Investments Limited
100 Park Avenue, Suite 1600
New York, New York 10017
Fax No.:
Attn: Stephen N. Cannon
Email:
With a copy (which shall not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
Fax No.: 212-370-7889
Attn: Barry Grossman, Esq.
Email:
10.2. Headings . The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
10.3. Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
10.4. Entire Agreement . This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
10.5. Binding Effect . This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained.
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10.6. | Governing Law, Venue, etc. |
10.6.1. In connection with Section 5-1401 of the General Obligations Law of the State of New York, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this Agreement shall be resolved through final and biding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators. The Company hereby appoints, without power of revocation, Ellenoff Grossman & Schole LLP, 150 East 42nd Street, 11th Floor, New York, New York 10017, Fax No.: (212) 370-7889, Attn: Stuart Neuhauser, Esq., as their respective agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of this Agreement. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of the Effective Date.
10.6.2. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
10.6.3. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor.
10.7. Execution in Counterparts . This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by fax or email/.pdf transmission shall constitute valid and sufficient delivery thereof.
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10.8. Waiver, etc. 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 affect 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.
10.9. No Fiduciary Relationship . The Company hereby acknowledges that the Underwriters are acting solely as underwriters in connection with the offering of the Public Securities. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm's length basis and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders, creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the offering of the Public Securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions, and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Public Securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
[Signature Page Follows]
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If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
Very Truly Yours, | ||
DT Asia Investments Limited | ||
By: | ||
Name: | ||
Title: |
Agreed to and accepted
as of the date first written above:
EARLYBIRDCAPITAL, INC. , as Representative of the several Underwriters
By: | ||
Name: | ||
Title: |
[Signature Page to Underwriting Agreement, dated , 2014]
SCHEDULE A
DT Asia Investments Limited
6,000,000 Units
Underwriter |
Number
of Firm Units
to be Purchased |
|||
EarlyBirdCapital, Inc. | ||||
TOTAL | 6,000,000 |
EXHIBIT A
Form of Target Business Letter
DT
Asia Investments Limited
100 Park Avenue, Suite 1600
New York, New York 10017
Attn: Stephen N. Cannon
Ladies and Gentlemen:
Reference is made to the Final Prospectus of DT Asia Investments Limited (the “ Company ”), dated , 2014 (the “ Prospectus ”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account, initially in an amount of at least $60,600,000, for the benefit of the Public Shareholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Shareholders in the event of the conversion of their shares upon consummation of a Business Combination or amendment to the Company’s Amended and Restated Memorandum and Articles of Association relating to pre-Business Combination activity, (ii) to the Public Shareholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of consummating a Business Combination with it, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a “ Claim ”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever.
Print Name of Target Business | |
Authorized Signature of Target Business |
EXHIBIT B
Form of Vendor Letter
DT
Asia Investments Limited
100 Park Avenue, Suite 1600
New York, New York 10017
Attn: Stephen N. Cannon
Ladies and Gentlemen:
Reference is made to the Final Prospectus of DT Asia Investments Limited (the “ Company ”), dated , 2014 (the “ Prospectus ”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Account, initially in an amount of at least $60,600,000, for the benefit of the Public Shareholders and that, except for the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Shareholders in the event of the conversion of their shares upon consummation of a Business Combination or amendment to the Company’s Amended and Restated Memorandum and Articles of Association relating to pre-Business Combination activity, (ii) to the Public Shareholders in connection with the Company’s liquidation in the event the Company is unable to consummate a Business Combination within the required time period or (iii) to the Company concurrently with, or after it consummates a Business Combination.
For and in consideration of the Company agreeing to use the services of the undersigned, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the Trust Account (each, a “ Claim ”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and will not seek recourse against the Trust Account for any reason whatsoever.
Print Name of Vendor | |
Authorized Signature of Vendor |
Exhibit 3.2
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE BVI BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION
OF
DT Asia Investments Limited
a company limited by shares
Amended and restated on [ • ] 2014
1 | NAME |
The name of the Company is DT Asia Investments Limited.
2 | STATUS |
The Company shall be a company limited by shares.
3 | REGISTERED OFFICE AND REGISTERED AGENT |
3.1 | The first registered office of the Company is at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands, the office of the first registered agent. |
3.2 | The first registered agent of the Company is Offshore Incorporations Limited of P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. |
3.3 | The Company may change its registered office or registered agent by a Resolution of Directors or a Resolution of Members. The change shall take effect upon the Registrar registering a notice of change filed under section 92 of the Act. |
4 | CAPACITY AND POWER |
4.1 | The Company has, subject to the Act and any other British Virgin Islands legislation for the time being in force, irrespective of corporate benefit: |
(a) | full capacity to carry on or undertake any business or activity, do any act or enter into any transaction; and |
(b) | for the purposes of paragraph (a), full rights, powers and privileges. |
4.2 | There are subject to Clause 4.1 and Regulation 23, no limitations on the business that the Company may carry on. |
5 | NUMBER AND CLASSES OF SHARES |
5.1 | The Company is authorised to issue an unlimited number of shares of no par value divided into six classes of shares as follows: |
(a) | Ordinary shares of no par value ( Ordinary Shares ); |
(b) | Class A preferred shares of no par value ( Class A Preferred Shares ); |
(c) | Class B preferred shares of no par value ( Class B Preferred Shares ); |
(d) | Class C preferred shares of no par value ( Class C Preferred Shares ); |
(e) | Class D preferred shares of no par value ( Class D Preferred Shares ); and |
(f) | Class E preferred shares of no par value ( Class E Preferred Shares and together with the Class A Preferred Shares, the Class B Preferred Shares, Class C Preferred Shares and the Class D Preferred Shares being referred to as the Preferred Shares ). |
5.2 | The Company may at the discretion of the Board of Directors, but shall not otherwise be obliged to, issue fractional Shares or round up or down fractional holdings of Shares to its nearest whole number and a fractional Share (if authorised by the Board of Directors) may have the corresponding fractional rights, obligations and liabilities of a whole share of the same class or series of shares. |
6 | DESIGNATIONS POWERS PREFERENCES OF SHARES |
6.1 | Each Ordinary Share in the Company confers upon the Member (unless waived by such Member): |
(a) | Subject to Clause 11, the right to one vote at a meeting of the Members of the Company or on any Resolution of Members; |
(b) | the right to be redeemed on an Automatic Redemption Event in accordance with Regulation 23.2 or pursuant to either a Tender Redemption Offer or Redemption Offer in accordance with Regulation 23.5 or pursuant to an Amendment Redemption Event in accordance with Regulation 23.12; |
(c) | the right to an equal share with each other Ordinary Share in any dividend paid by the Company; and |
(d) | subject to satisfaction of and compliance with Regulation 23, the right to an equal share with each other Ordinary Share in the distribution of the surplus assets of the Company on its liquidation. |
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6.2 | The rights, privileges, restrictions and conditions attaching to the Preferred Shares shall be stated in this Memorandum, which shall be amended accordingly prior to the issue of such Preferred Shares. Such rights, privileges, restrictions and conditions may include: |
(a) | the number of shares and series constituting that class and the distinctive designation of that class; |
(b) | the dividend rate of the Preferred Shares of that class, if any, whether dividends shall be cumulative, and, if so, from which date or dates, and whether they shall be payable in preference to, or in relation to, the dividends payable on any other class or classes of Preferred Shares; |
(c) | whether that class shall have voting rights, and, if so, the terms of such voting rights; |
(d) | whether that class shall have conversion or exchange privileges, and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board of Directors shall determine; |
(e) | whether or not the Preferred Shares of that class shall be redeemable, and, if so, the terms and conditions of such redemption, including the manner of selecting Shares for redemption if less than all Preferred Shares are to be redeemed, the date or dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount maybe less than fair value and which may vary under different conditions and at different dates; |
(f) | whether that class shall be entitled to the benefit of a sinking fund to be applied to the purchase or redemption of Preferred Shares of that class, and, if so, the terms and amounts of such sinking fund; |
(g) | the right of the Preferred Shares of that class to the benefit of conditions and restrictions upon the creation of indebtedness of the Company or any subsidiary, upon the issue of any additional Preferred Shares (including additional Preferred Shares of such class of any other class) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition or any subsidiary of any outstanding Preferred Shares of the Company; |
(h) | the right of the Preferred Shares of that class in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and whether such rights be in preference to, or in relation to, the comparable rights or any other class or classes of Preferred Shares; and |
(i) | any other relative, participating, optional or other special rights, qualifications, limitations or restrictions of that class. |
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6.3 | The Directors may at their discretion by Resolution of Directors redeem, purchase or otherwise acquire all or any of the Shares in the Company subject to Regulation 6 and Regulation 23 of the Articles. |
6.4 | The Directors have the authority and the power by Resolution of Directors: |
(a) | to authorise and create additional classes of shares; and |
(b) | (subject to the provisions of Clause 6.2) to fix the designations, powers, preferences, rights, qualifications, limitations and restrictions, if any, appertaining to any and all classes of shares that may be authorised to be issued under this Memorandum. |
7 | VARIATION OF RIGHTS |
7.1 | Prior to a Business Combination and subject always to the limitations set out in Clause 11, the rights attached to Shares as specified in Clause 6 may only, whether or not the Company is being wound up, be varied by a resolution passed at a meeting by the holders of at least sixty-five percent (65%) of the total number of Shares of that class that have voted (and are entitled to vote thereon) in relation to any such resolution, unless otherwise provided by the terms of issue of such class. |
7.2 | Notwithstanding Clause 7.1, where the amendment proposed is for the purposes of approving, or in conjunction with the consummation of, or is intended to facilitate, a Business Combination and thereafter following the consummation of a Business Combination, the rights attached to Shares as specified in Clause 6 may only, whether or not the Company is being wound up, be varied by a resolution passed at a meeting by the holders of more than fifty percent (50%) of the Shares of that class present at a duly convened and constituted meeting of the Members of the Company holding shares in such class which were present at the meeting and voted unless otherwise provided by the terms of issue of such class, provided however that the Resolution of Members approving an amendment for the purposes of approving, or in conjunction with, the consummation of the Business Combination shall be subject to, and therefore the amendment so approved not made until immediately prior to the time at which the Business Combination is consummated, unless the approval is in accordance with Clause 7.1. |
8 | RIGHTS NOT VARIED BY THE ISSUE OF SHARES PARI PASSU |
The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith.
9 | REGISTERED SHARES |
9.1 | The Company shall issue registered shares only. |
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9.2 | The Company is not authorised to issue bearer shares, convert registered shares to bearer shares or exchange registered shares for bearer shares. |
10 | TRANSFER OF SHARES |
A Share may be transferred in accordance with Regulation 4 of the Articles.
11 | AMENDMENT OF MEMORANDUM AND ARTICLES |
11.1 | The Company may amend its Memorandum or Articles by a Resolution of Members or by a Resolution of Directors, save that no amendment may be made by a Resolution of Directors: |
(a) | to restrict the rights or powers of the Members to amend the Memorandum or Articles; |
(b) | to change the percentage of Members required to pass a Resolution of Members to amend the Memorandum or Articles; |
(c) | in circumstances where the Memorandum or Articles cannot be amended by the Members; or |
(d) | to change Clauses 7 or 8, this Clause 11 or Regulation 23. |
11.2 | Notwithstanding Clause 11.1, no amendment may be made to the Memorandum or Articles by a Resolution of Members to amend: |
(a) | Regulation 23 prior to the Business Combination, unless the amendment proposed is for the purposes of approving, or is in conjunction with the consummation of, or is intended to facilitate, a Business Combination, provided always that (i) the amendment does not alter the Company's obligation to pay or to offer to pay the Per-Share Redemption Price to any holder of the Public Shares or the timing of this payment without the consent of that holder and (ii) the Resolution of Members approving such amendment shall be subject to, and therefore the amendment so approved not made until immediately prior to the time at which the Business Combination is consummated, unless the approval is in accordance with Clause 7.1; or |
(b) | Regulation 9.1(b) during the Target Business Acquisition Period. |
Pursuant to Section 12(2)(c) of the Act, this Clause 11.2 may not be amended prior to the consummation of the Business Combination, unless the amendment proposed is for the purposes of approving, or in conjunction with the consummation of, or is intended to facilitate, a Business Combination.
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12 | DEFINITIONS AND INTERPRETATION |
12.1 | In this Memorandum of Association and the attached Articles of Association, if not inconsistent with the subject or context: |
(a) | Act means the BVI Business Companies Act, 2004 and includes the regulations made under the Act; |
(b) | AGM means an annual general meeting of the Members; |
(c) | Amendment has the meaning ascribed to it in Regulation 23.12; |
(d) | Amendment Redemption Event has the meaning ascribed to it in Regulation 23.12; |
(e) | Approved Amendment has the meaning ascribed to it in Regulation 23.12; |
(f) | Articles means the attached Articles of Association of the Company; |
(g) | Automatic Redemption Event shall have the meaning given to it in Regulation 23.2; |
(h) | Board of Directors means the board of directors of the Company; |
(i) | Business Combination shall mean the initial acquisition by the Company, whether through a merger, share reconstruction or amalgamation, asset or share acquisition, exchangeable share transaction, contractual control arrangement or other similar type of transaction, with a Target Business at Fair Value; |
(j) | Business Combination Articles means Regulation 23 relating to the Company's obligations regarding the consummation of a Business Combination; |
(k) | Business Days means a day other than a Saturday or Sunday or any other day on which commercial banks in New York are required or are authorised to be closed for business; |
(l) | Chairman means a person who is appointed as chairman to preside at a meeting of the Company and Chairman of the Board means a person who is appointed as chairman to preside at a meeting of the Board of Directors of the Company, in each case, in accordance with the Articles; |
(m) | Class A Preferred Shares has the meaning ascribed to it in Clause 5.1; |
(n) | Class B Preferred Shares has the meaning ascribed to it in Clause 5.1; |
(o) | Class C Preferred Shares has the meaning ascribed to it in Clause 5.1; |
(p) | Class D Preferred Shares has the meaning ascribed to it in Clause 5.1; |
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(q) | Class E Preferred Shares has the meaning ascribed to it in Clause 5.1; |
(r) | Class I Directors has the meaning ascribed to it in Regulation 9.1(b); |
(s) | Class II Directors has the meaning ascribed to it in Regulation 9.1(b); |
(t) | Class III Directors has the meaning ascribed to it in Regulation 9.1(b); |
(u) | Designated Stock Exchange means the Over-the-Counter Bulletin Board, the Global Select System, Global System or the Capital Market of the Nasdaq Stock Market LLC., the NYSE MKT or the New York Stock Exchange, as applicable; provided, however, that until the Shares are listed on any such Designated Stock Exchange, the rules of such Designated Stock Exchange shall be inapplicable to the Company and this Memorandum or the Articles; |
(v) | Director means any director of the Company, from time to time; |
(w) | Distribution in relation to a distribution by the Company means the direct or indirect transfer of an asset, other than Shares, to or for the benefit of a Member in relation to Shares held by a Member, and whether by means of a purchase of an asset, the redemption or other acquisition of Shares, a distribution of indebtedness or otherwise, and includes a dividend; |
(x) | Eligible Person means individuals, corporations, trusts, the estates of deceased individuals, partnerships and unincorporated associations of persons; |
(y) | Enterprise means the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which an Indemnitee is or was serving at the request of the Company as a Director, Officer, trustee, general partner, managing member, fiduciary, employee or agent; |
(z) | Exchange Act means the United States Securities Exchange Act of 1934, as amended; |
(aa) | Expenses shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all legal fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses, in each case reasonably incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding, including reasonable compensation for time spent by the Indemnitee for which he or she is not otherwise compensated by the Company or any third party. Expenses shall also include any or all of the foregoing expenses incurred in connection with all judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred (whether by an Indemnitee, or on his behalf) in connection with such Proceeding or any claim, issue or matter therein, or any appeal resulting from any Proceeding, including without limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, but shall not include amounts paid in settlement by an Indemnitee or the amount of judgments or fines against an Indemnitee; |
(bb) | Fair Value shall mean a value at least equal to 80% of the balance in the Trust Account at the time of the execution of a definitive agreement for a Business Combination; |
(cc) | FINRA means the Financial Industry Regulatory Authority of the United States; |
(dd) | Initial Shareholder means the Sponsor and the Officers and Directors who hold the Shares prior to the IPO; |
(ee) | Indemnitee means any person detailed in sub regulations (a) and (b) of Regulation 15. |
(ff) | Insider means any Officer, Director or pre-IPO shareholder (and their respective affiliates); |
(gg) | IPO means the initial public offering of securities and rights to receive or subscribe for securities of the Company; |
(hh) | Member means an Eligible Person whose name is entered in the share register of the Company as the holder of one or more Shares or fractional Shares; |
(ii) | Memorandum means this Memorandum of Association of the Company; |
(jj) | Officer means any officer of the Company, from time to time; |
(kk) | Ordinary Shares has the meaning ascribed to it in Clause 5.1; |
(ll) | Per-Share Redemption Price means: |
(i) | with respect to an Automatic Redemption Event, the aggregate amount on deposit in the Trust Account (less up to US$50,000 of the net interest earned thereon to pay dissolution expenses) divided by the number of then outstanding Public Shares; |
(ii) | with respect to an Amendment Redemption Event, the aggregate amount on deposit in the Trust Account divided by the number of then outstanding Public Shares; and |
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(iii) | with respect to either a Tender Redemption Offer or a Redemption Offer, the aggregate amount then on deposit in the Trust Account on the date that is two Business Days prior to the consummation of the Business Combination including interest but net of taxes payable or amounts released to the Company for working capital purposes, divided by the number of then outstanding Public Shares; |
(mm) | Proceeding means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the name of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative nature, in which an Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact that such Indemnitee is or was a Director or Officer of the Company, by reason of any action (or failure to act) taken by him or of any action (or failure to act) on his part while acting as a Director, Officer, employee or adviser of the Company, or by reason of the fact that he is or was serving at the request of the Company as a Director, Officer, trustee, general partner, managing member, fiduciary, employee, adviser or agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under these Articles; |
(nn) | Public Shares has the meaning ascribed to it in Regulation 23.5(a); |
(oo) | Preferred Shares has the meaning ascribed to it in Clause 5.1; |
(pp) | Redemption Offer has the meaning ascribed to it in Regulation 23.5(b); |
(qq) | Registration Statement has the meaning ascribed to it in Regulation 23.10; |
(rr) | relevant system means a relevant system for the holding and transfer of shares in uncertificated form; |
(ss) | Resolution of Directors means either: |
(i) | Subject to sub-paragraph (ii) below, a resolution approved at a duly convened and constituted meeting of Directors of the Company or of a committee of Directors of the Company by the affirmative vote of a majority of the Directors present at the meeting who voted except that where a Director is given more than one vote, he shall be counted by the number of votes he casts for the purpose of establishing a majority; or |
(ii) | a resolution consented to in writing by all Directors or by all members of a committee of Directors of the Company, as the case may be; |
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(tt) | Resolution of Members means: |
(i) | prior to the consummation of a Business Combination (but excluding any Resolution of Members in relation to approval of a Business Combination pursuant to Regulation 23.4), a resolution approved at a duly convened and constituted meeting of the Members of the Company by the affirmative vote of the holders of at least sixty-five percent (65%) of the votes of the Shares entitled to vote thereon which were present at the meeting and were voted; or | |
(ii) | following the consummation of a Business Combination or in relation to any Resolution of Members that may be proposed for the purpose of approving, or in conjunction with the consummation of, a Business Combination pursuant to Regulation 23.4, a resolution approved at a duly convened and constituted meeting of the Members of the Company by the affirmative vote of a majority of the votes of the Shares entitled to vote thereon which were present at the meeting and were voted; |
(uu) | Seal means any seal which has been duly adopted as the common seal of the Company; |
(vv) | SEC means the United States Securities and Exchange Commission; |
(ww) | Securities means Shares and debt obligations of every kind of the Company, and including without limitation options, warrants and rights to acquire shares or debt obligations; |
(xx) | Securities Act means the United States Securities Act of 1933, as amended; |
(yy) | Share means a share issued or to be issued by the Company and Shares shall be construed accordingly; |
(zz) | Sponsor means DeTiger Holdings Limited; |
(aaa) | Target Business means any businesses or entity with whom the Company wishes to undertake a Business Combination; |
(bbb) | Target Business Acquisition Period shall mean the period commencing from the effectiveness of the registration statement filed with the SEC in connection with the Company's IPO up to and including the first to occur of (i) a Business Combination; or (ii) the Termination Date. |
(ccc) | Tender Redemption Offer has the meaning ascribed to it in Regulation 23.5(a); |
(ddd) | Termination Date has the meaning given to it in Regulation 23.2; |
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(eee) | Treasury Share means a Share that was previously issued but was repurchased, redeemed or otherwise acquired by the Company and not cancelled; and |
(fff) | Trust Account shall mean the trust account established by the Company at the consummation of the IPO and into which a certain amount of the IPO proceeds and proceeds from a simultaneous private placement of like securities and rights by the Company are deposited, as may be reduced from time to time for amounts reserved for operating expenses; and |
(ggg) | written or any term of like import includes information generated, sent, received or stored by electronic, electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, including electronic data interchange, electronic mail, telegram, telex or telecopy, and "in writing" shall be construed accordingly. |
12.2 | In the Memorandum and the Articles, unless the context otherwise requires a reference to: |
(a) | a Regulation is a reference to a regulation of the Articles; |
(b) | a Clause is a reference to a clause of the Memorandum; |
(c) | voting by Member is a reference to the casting of the votes attached to the Shares held by the Member voting; |
(d) | the Act, the Memorandum or the Articles is a reference to the Act or those documents as amended; and |
(e) | the singular includes the plural and vice versa. |
12.3 | Any words or expressions defined in the Act unless the context otherwise requires bear the same meaning in the Memorandum and Articles unless otherwise defined herein. |
12.4 | Headings are inserted for convenience only and shall be disregarded in interpreting the Memorandum and Articles. |
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We, Offshore Incorporations Limited of P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands, for the purpose of incorporating a BVI business company under the laws of the British Virgin Islands hereby sign this Memorandum of Association.
Dated: 4th day of April, 2014
Incorporator
…………………………………
(Sd.) Rexella D. Hodge
Authorised Signatory
OFFSHORE INCORPORATIONS LIMITED
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TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE BVI BUSINESS COMPANIES ACT 2004
ARTICLES OF ASSOCIATION
OF
DT Asia Investments Limited
a company limited by shares
Amended and restated on [ • ] 2014
1 | REGISTERED SHARES |
1.1 | Every Member is entitled to a certificate signed by a Director of the Company or under the Seal specifying the number of Shares held by him and the signature of the Director and the Seal may be facsimiles. |
1.2 | Any Member receiving a certificate shall indemnify and hold the Company and its Directors and Officers harmless from any loss or liability which it or they may incur by reason of any wrongful or fraudulent use or representation made by any person by virtue of the possession thereof. If a certificate for Shares is worn out or lost it may be renewed on production of the worn out certificate or on satisfactory proof of its loss together with such indemnity as may be required by a Resolution of Directors. |
1.3 | If several Eligible Persons are registered as joint holders of any Shares, any one of such Eligible Persons may give an effectual receipt for any Distribution. |
1.4 | Nothing in these Articles shall require title to any Shares or other Securities to be evidenced by a certificate if the Act and the rules of the Designated Stock Exchange permit otherwise. |
1.5 | Subject to the Act and the rules of the Designated Stock Exchange, the Board of Directors without further consultation with the holders of any Shares or Securities may resolve that any class or series of Shares or other Securities in issue or to be issued from time to time may be issued, registered or converted to uncertificated form and the practices instituted by the operator of the relevant system. No provision of these Articles will apply to any uncertificated shares or Securities to the extent that they are inconsistent with the holding of such shares or securities in uncertificated form or the transfer of title to any such shares or securities by means of a relevant system. |
1.6 | Conversion of Shares held in certificated form into Shares held in uncertificated form, and vice versa, may be made in such manner as the Board of Directors, in its absolute discretion, may think fit (subject always to the requirements of the relevant system concerned). The Company or any duly authorised transfer agent shall enter on the register of members how many Shares are held by each member in uncertificated form and certificated form and shall maintain the register of members in each case as is required by the relevant system concerned. Notwithstanding any provision of these Articles, a class or series of Shares shall not be treated as two classes by virtue only of that class or series comprising both certificated shares and uncertificated shares or as a result of any provision of these Articles which applies only in respect of certificated shares or uncertificated shares. |
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1.7 | Nothing contained in Regulation 1.5 and 1.6 is meant to prohibit the Shares from being able to trade electronically. For the avoidance of doubt, Shares shall only be traded and transferred electronically upon consummation of the IPO. |
2 | SHARES |
2.1 | Subject to the provisions of these Articles and, where applicable, the rules of the Designated Stock Exchange, the unissued Shares of the Company shall be at the disposal of the Directors and Shares and other Securities may be issued and option to acquire Shares or other Securities may be granted at such times, to such Eligible Persons, for such consideration and on such terms as the Directors may by Resolution of Directors determine. |
2.2 | Without prejudice to any special rights previously conferred on the holders of any existing Preferred Shares or class of Preferred Shares, any class of Preferred Shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting or otherwise as the Directors may from time to time determine. |
2.3 | Section 46 of the Act does not apply to the Company. |
2.4 | A Share may be issued for consideration in any form, including money, a promissory note, real property, personal property (including goodwill and know-how) or a contract for future services. |
2.5 | No Shares may be issued for a consideration other than money, unless a Resolution of Directors has been passed stating: |
(a) | the amount to be credited for the issue of the Shares; |
(b) | their determination of the reasonable present cash value of the non-money consideration for the issue; and |
(c) | that, in their opinion, the present cash value of the non-money consideration for the issue is not less than the amount to be credited for the issue of the Shares. |
2.6 | The Company shall keep a register (the share register ) containing: |
(a) | the names and addresses of the persons who hold Shares; |
(b) | the number of each class and series of Shares held by each Member; |
(c) | the date on which the name of each Member was entered in the share register; and |
(d) | the date on which any Eligible Person ceased to be a Member. |
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2.7 | The share register may be in any such form as the Directors may approve, but if it is in magnetic, electronic or other data storage form, the Company must be able to produce legible evidence of its contents. Until the Directors otherwise determine, the magnetic, electronic or other data storage form shall be the original share register. |
2.8 | A Share is deemed to be issued when the name of the Member is entered in the share register. |
2.9 | Subject to the provisions of the Act and the Business Combination Articles, Shares may be issued on the terms that they are redeemable, or at the option of the Company be liable to be redeemed on such terms and in such manner as the Directors before or at the time of the issue of such Shares may determine. The Directors may issue options, warrants or convertible securities or securities or a similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or Securities on such terms as the Directors may from time to time determine. Notwithstanding the foregoing, the Directors may also issue options, warrants, other rights to acquire shares or convertible securities in connection with the Company's IPO. |
3 | FORFEITURE |
3.1 | Shares that are not fully paid on issue are subject to the forfeiture provisions set forth in this Regulation and for this purpose Shares issued for a promissory note or a contract for future services are deemed to be not fully paid. |
3.2 | A written notice of call specifying the date for payment to be made shall be served on the Member who defaults in making payment in respect of the Shares. |
3.3 | The written notice of call referred to in Regulation 3.2 shall name a further date not earlier than the expiration of 14 days from the date of service of the notice on or before which the payment required by the notice is to be made and shall contain a statement that in the event of non-payment at or before the time named in the notice the Shares, or any of them, in respect of which payment is not made will be liable to be forfeited. |
3.4 | Where a written notice of call has been issued pursuant to Regulation 3.2 and the requirements of the notice have not been complied with, the Directors may, at any time before tender of payment, forfeit and cancel the Shares to which the notice relates. |
3.5 | The Company is under no obligation to refund any moneys to the Member whose Shares have been cancelled pursuant to Regulation 3.4 and that Member shall be discharged from any further obligation to the Company. |
4 | TRANSFER OF SHARES |
4.1 | Subject to the Memorandum, certificated shares may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, which shall be sent to the Company for registration. A member shall be entitled to transfer uncertificated shares by means of a relevant system and the operator of the relevant system shall act as agent of the Members for the purposes of the transfer of such uncertificated shares. |
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4.2 | The transfer of a Share is effective when the name of the transferee is entered on the share register. |
4.3 | If the Directors of the Company are satisfied that an instrument of transfer relating to Shares has been signed but that the instrument has been lost or destroyed, they may resolve by Resolution of Directors: |
(a) | to accept such evidence of the transfer of Shares as they consider appropriate; and |
(b) | that the transferee's name should be entered in the share register notwithstanding the absence of the instrument of transfer. |
4.4 | Subject to the Memorandum, the personal representative of a deceased Member may transfer a Share even though the personal representative is not a Member at the time of the transfer. |
5 | DISTRIBUTIONS |
5.1 | Subject to the Business Combination Articles, the Directors of the Company may, by Resolution of Directors, authorise a distribution at a time and of an amount they think fit if they are satisfied, on reasonable grounds, that, immediately after the distribution, the value of the Company's assets will exceed its liabilities and the Company will be able to pay its debts as and when they fall due. |
5.2 | Dividends may be paid in money, shares, or other property. |
5.3 | The Company may, by Resolution of Directors, from time to time pay to the Members such interim dividends as appear to the Directors to be justified by the profits of the Company, provided always that they are satisfied, on reasonable grounds, that, immediately after the distribution, the value of the Company's assets will exceed its liabilities and the Company will be able to pay its debts as and when they fall due. |
5.4 | Notice in writing of any dividend that may have been declared shall be given to each Member in accordance with Regulation 21 and all dividends unclaimed for three years after such notice has been given to a Member may be forfeited by Resolution of Directors for the benefit of the Company. |
5.5 | No dividend shall bear interest as against the Company. |
6 | REDEMPTION OF SHARES AND TREASURY SHARES |
6.1 | The Company may purchase, redeem or otherwise acquire and hold its own Shares save that the Company may not purchase, redeem or otherwise acquire its own Shares without the consent of the Member whose Shares are to be purchased, redeemed or otherwise acquired unless the Company is permitted by the Act or any other provision in the Memorandum or Articles to purchase, redeem or otherwise acquire the Shares without such consent. |
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6.2 | The purchase, redemption or other acquisition by the Company of its own Shares is deemed not to be a distribution where: |
(a) | the Company purchases, redeems or otherwise acquires the Shares pursuant to a right of a Member to have his Shares redeemed or to have his shares exchanged for money or other property of the Company, or |
(b) | the Company purchases, redeems or otherwise acquires the Shares by virtue of the provisions of section 179 of the Act. |
6.3 | Sections 60, 61 and 62 of the Act shall not apply to the Company. |
6.4 | Subject to the provisions of Regulation 23, shares that the Company purchases, redeems or otherwise acquires pursuant to this Regulation may be cancelled or held as Treasury Shares except to the extent that such Shares are in excess of 50 percent of the issued Shares in which case they shall be cancelled but they shall be available for reissue. |
6.5 | All rights and obligations attaching to a Treasury Share are suspended and shall not be exercised by the Company while it holds the Share as a Treasury Share. |
6.6 | Treasury Shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with the Memorandum and Articles) as the Company may by Resolution of Directors determine. |
6.7 | Where Shares are held by another body corporate of which the Company holds, directly or indirectly, shares having more than 50 per cent of the votes in the election of Directors of the other body corporate, all rights and obligations attaching to the Shares held by the other body corporate are suspended and shall not be exercised by the other body corporate. |
7 | MORTGAGES AND CHARGES OF SHARES |
7.1 | A Member may by an instrument in writing mortgage or charge his Shares. |
7.2 | There shall be entered in the share register at the written request of the Member: |
(a) | a statement that the Shares held by him are mortgaged or charged; |
(b) | the name of the mortgagee or chargee; and |
(c) | the date on which the particulars specified in subparagraphs (a) and (b) are entered in the share register. |
7.3 | Where particulars of a mortgage or charge are entered in the share register, such particulars may be cancelled: |
(a) | with the written consent of the named mortgagee or chargee or anyone authorised to act on his behalf; or |
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(b) | upon evidence satisfactory to the Directors of the discharge of the liability secured by the mortgage or charge and the issue of such indemnities as the Directors shall consider necessary or desirable. |
7.4 | Whilst particulars of a mortgage or charge over Shares are entered in the share register pursuant to this Regulation: |
(a) | no transfer of any Share the subject of those particulars shall be effected; |
(b) | the Company may not purchase, redeem or otherwise acquire any such Share; and |
(c) | no replacement certificate shall be issued in respect of such Shares, |
without the written consent of the named mortgagee or chargee.
8 | MEETINGS AND CONSENTS OF MEMBERS |
8.1 | Any Director of the Company may convene meetings of the Members at such times and in such manner and places within or outside the British Virgin Islands as the Director considers necessary or desirable. Following consummation of the Business Combination, an AGM shall be held annually at such date and time as may be determined by the Directors. |
8.2 | Upon the written request of the Members entitled to exercise 30 percent or more of the voting rights in respect of the matter for which the meeting is requested the Directors shall convene a meeting of Members. |
8.3 | The Director convening a meeting of Members shall give not less than 10 nor more than 60 days' written notice of such meeting to: |
(a) | those Members whose names on the date the notice is given appear as Members in the share register of the Company and are entitled to vote at the meeting; and |
(b) | the other Directors. |
8.4 | The Director convening a meeting of Members shall fix in the notice of the meeting the record date for determining those Members that are entitled to vote at the meeting. |
8.5 | A meeting of Members held in contravention of the requirement to give notice is valid if Members holding at least 90 per cent of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose, the presence of a Member at the meeting shall constitute waiver in relation to all the Shares which that Member holds. |
8.6 | The inadvertent failure of a Director who convenes a meeting to give notice of a meeting to a Member or another Director, or the fact that a Member or another Director has not received notice, does not invalidate the meeting. |
8.7 | A Member may be represented at a meeting of Members by a proxy who may speak and vote on behalf of the Member. |
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8.8 | The instrument appointing a proxy shall be produced at the place designated for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote. |
8.9 | The instrument appointing a proxy shall be in substantially the following form or such other form as the chairman of the meeting shall accept as properly evidencing the wishes of the Member appointing the proxy. |
DT Asia Investments Limited
I/We being a Member of the above Company HEREBY APPOINT ……………………………………………………………………………..…… of ……………………………………...……….…………..………… or failing him …..………………………………………………….…………………….. of ………………………………………………………..…..…… to be my/our proxy to vote for me/us at the meeting of Members to be held on the …… day of …………..…………, 20…… and at any adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this …… day of …………..…………, 20……
……………………………
Member
8.10 | The following applies where Shares are jointly owned: |
(a) | if two or more persons hold Shares jointly each of them may be present in person or by proxy at a meeting of Members and may speak as a Member; |
(b) | if only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners; and |
(c) | if two or more of the joint owners are present in person or by proxy they must vote as one and in the event of disagreement between any of the joint owners of Shares then the vote of the joint owner whose name appears first (or earliest) in the share register in respect of the relevant Shares shall be recorded as the vote attributable to the Shares. |
8.11 | A Member shall be deemed to be present at a meeting of Members if he participates by telephone or other electronic means and all Members participating in the meeting are able to hear each other. |
8.12 | A meeting of Members is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 35 per cent of the votes of the Shares entitled to vote on Resolutions of Members to be considered at the meeting. If the Company has two or more classes of shares, a meeting may be quorate for some purposes and not for others. A quorum may comprise a single Member or proxy and then such person may pass a Resolution of Members and a certificate signed by such person accompanied where such person holds a proxy by a copy of the proxy instrument shall constitute a valid Resolution of Members. |
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8.13 | If within two hours from the time appointed for the meeting of Members, a quorum is not present, the meeting, at the discretion of the Chairman of the Board of Directors shall either be dissolved or stand adjourned to a business day in the jurisdiction in which the meeting was to have been held at the same time and place, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the Shares or each class or series of Shares entitled to vote on the matters to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall either be dissolved or stand further adjourned at the discretion of the Chairman of the Board of Directors. |
8.14 | At every meeting of Members, the Chairman of the Board shall preside as chairman of the meeting. If there is no Chairman of the Board or if the Chairman of the Board is not present at the meeting, the Members present shall choose one of their number to be the chairman. If the Members are unable to choose a chairman for any reason, then the person representing the greatest number of voting Shares present in person or by proxy at the meeting shall preside as chairman failing which the oldest individual Member or representative of a Member present shall take the chair. |
8.15 | The person appointed as chairman of the meeting pursuant to Regulation 8.14 may adjourn any meeting from time to time, and from place to place. For the avoidance of doubt, a meeting can be adjourned for as many times as may be determined to be necessary by the chairman and a meeting may remain open indefinitely for as long a period as may be determined by the chairman. |
8.16 | At any meeting of the Members the chairman of the meeting is responsible for deciding in such manner as he considers appropriate whether any resolution proposed has been carried or not and the result of his decision shall be announced to the meeting and recorded in the minutes of the meeting. If the chairman has any doubt as to the outcome of the vote on a proposed resolution, he shall cause a poll to be taken of all votes cast upon such resolution. If the chairman fails to take a poll then any Member present in person or by proxy who disputes the announcement by the chairman of the result of any vote may immediately following such announcement demand that a poll be taken and the chairman shall cause a poll to be taken. If a poll is taken at any meeting, the result shall be announced to the meeting and recorded in the minutes of the meeting. |
8.17 | Subject to the specific provisions contained in this Regulation for the appointment of representatives of Members other than individuals the right of any individual to speak for or represent a Member shall be determined by the law of the jurisdiction where, and by the documents by which, the Member is constituted or derives its existence. In case of doubt, the Directors may in good faith seek legal advice and unless and until a court of competent jurisdiction shall otherwise rule, the Directors may rely and act upon such advice without incurring any liability to any Member or the Company. |
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8.18 | Any Member other than an individual may by resolution of its Directors or other governing body authorise such individual as it thinks fit to act as its representative at any meeting of Members or of any class of Members, and the individual so authorised shall be entitled to exercise the same rights on behalf of the Member which he represents as that Member could exercise if it were an individual. |
8.19 | The chairman of any meeting at which a vote is cast by proxy or on behalf of any Member other than an individual may at the meeting but not thereafter call for a notarially certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes cast by such proxy or on behalf of such Member shall be disregarded. |
8.20 | Directors of the Company may attend and speak at any meeting of Members and at any separate meeting of the holders of any class or series of Shares. |
8.21 | Until the consummation of the Company's IPO, any action that may be taken by the Members at a meeting may also be taken by a Resolution of Members consented to in writing, without the need for any prior notice. If any Resolution of Members is adopted otherwise than by the unanimous written consent of all Members, a copy of such resolution shall forthwith be sent to all Members not consenting to such resolution. The consent may be in the form of counterparts, each counterpart being signed by one or more Members. If the consent is in one or more counterparts, and the counterparts bear different dates, then the resolution shall take effect on the earliest date upon which Eligible Persons holding a sufficient number of votes of Shares to constitute a Resolution of Members have consented to the resolution by signed counterparts. Following the Company's IPO, any action required or permitted to be taken by the Members of the Company must be effected by a meeting of the Company, such meeting to be duly convened and held in accordance with these Articles. |
9 | DIRECTORS |
9.1 | The first Directors of the Company shall be appointed by the first registered agent within 30 days of the incorporation of the Company; and thereafter, the Directors shall be elected: |
(a) | subject to Regulation 9.1 (b), by Resolution of Members or by Resolution of Directors for such term as the Members or Directors determine; |
(b) | immediately prior to the consummation of an IPO, the Directors shall pass a Resolution of Directors dividing themselves into three classes, being the class I directors (the Class I Directors ), the class II directors (the Class II Directors ) and the class III directors (the Class III Directors ). The number of Directors in each class shall be as nearly equal as possible. The Class I Directors shall stand elected for a term expiring at the Company's first AGM, the Class II Directors shall stand elected for a term expiring at the Company's second AGM and the Class III Directors shall stand elected for a term expiring at the Company's third AGM. Commencing at the First AGM, and at each following AGM, Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third AGM following their election. Except as the Act or any applicable law may otherwise require, in the interim between an AGM or general meeting called for the election of Directors and/or the removal of one or more Directors any vacancy on the Board of Directors, may be filled by the majority vote of the remaining Directors. |
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9.2 | No person shall be appointed as a Director of the Company unless he has consented in writing to act as a Director. |
9.3 | The minimum number of Directors shall be one and there shall be no maximum number of Directors. |
9.4 | Each Director holds office for the term, if any, fixed by the Resolution of Members or Resolution of Directors appointing him, or until his earlier death, resignation or removal (provided that no director may be removed by a Resolution of Members prior to the consummation of the initial Business Combination). If no term is fixed on the appointment of a Director, the Director serves indefinitely until his earlier death, resignation or removal. |
9.5 | A Director may be removed from office with or without cause by: |
(a) | (following the consummation of the initial Business Combination but not at any time before) a Resolution of Members passed at a meeting of Members called for the purposes of removing the Director or for purposes including the removal of the Director or by a written resolution passed by a least seventy five per cent of the Members of the Company entitled to vote; or |
(b) | subject to Regulation 9.1 (b), a Resolution of Directors passed at a meeting of Directors. |
9.6 | A Director may resign his office by giving written notice of his resignation to the Company and the resignation has effect from the date the notice is received by the Company at the office of its registered agent or from such later date as may be specified in the notice. A Director shall resign forthwith as a Director if he is, or becomes, disqualified from acting as a Director under the Act. |
9.7 | Subject to Regulation 9.1 (b), the Directors may at any time appoint any person to be a Director either to fill a vacancy or as an addition to the existing Directors. Where the Directors appoint a person as Director to fill a vacancy, the term shall not exceed the term that remained when the person who has ceased to be a Director ceased to hold office. |
9.8 | A vacancy in relation to Directors occurs if a Director dies or otherwise ceases to hold office prior to the expiration of his term of office. |
9.9 | The Company shall keep a register of Directors containing: |
(a) | the names and addresses of the persons who are Directors of the Company; |
(b) | the date on which each person whose name is entered in the register was appointed as a Director of the Company; |
(c) | the date on which each person named as a Director ceased to be a Director of the Company; and |
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(d) | such other information as may be prescribed by the Act. |
9.10 | The register of Directors may be kept in any such form as the Directors may approve, but if it is in magnetic, electronic or other data storage form, the Company must be able to produce legible evidence of its contents. Until a Resolution of Directors determining otherwise is passed, the magnetic, electronic or other data storage shall be the original register of Directors. |
9.11 | The Directors, or if the Shares (or depository receipts therefore) are listed or quoted on a Designated Stock Exchange, and if required by the Designated Stock Exchange, any committee thereof, may, by a Resolution of Directors, fix the emoluments of Directors with respect to services to be rendered in any capacity to the Company. |
9.12 | A Director is not required to hold a Share as a qualification to office. |
9.13 | Prior to the consummation of any transaction with: |
(a) | any affiliate of the Company; |
(b) | any Member owning an interest in the voting power of the Company that gives such Member a significant influence over the Company; |
(c) | any Director or executive officer of the Company and any relative of such Director or executive officer; and |
(d) | any person in which a substantial interest in the voting power of the Company is owned, directly or indirectly, by a person referred to in Regulations 9.13(b) and (c) or over which such a person is able to exercise significant influence, |
such transaction must be approved by a majority of the members of the Board of Directors who do not have an interest in the transaction, such directors having been provided with access (at the Company's expense) to the Company's attorney or independent legal counsel, unless the disinterested directors determine that the terms of such transaction are no less favourable to the Company than those that would be available to the Company with respect to such a transaction from unaffiliated third parties.
10 | POWERS OF DIRECTORS |
10.1 | The business and affairs of the Company shall be managed by, or under the direction or supervision of, the Directors of the Company. The Directors of the Company have all the powers necessary for managing, and for directing and supervising, the business and affairs of the Company. The Directors may pay all expenses incurred preliminary to and in connection with the incorporation of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or the Articles required to be exercised by the Members. |
10.2 | If the Company is the wholly owned subsidiary of a holding company, a Director of the Company may, when exercising powers or performing duties as a Director, act in a manner which he believes is in the best interests of the holding company even though it may not be in the best interests of the Company. |
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10.3 | If the Company is a subsidiary, but not a wholly owned subsidiary, of a holding company, and the shareholders other than the holding company agree in advance, a Director of the Company may, when exercising powers or performing duties as a Director in connection with the carrying out of the joint venture, act in a manner which he believes is in the best interests of a Member or some Members even though it may not be in the best interests of the Company. |
10.4 | If the Company is carrying out a joint venture between shareholders, a Director of the Company may, when exercising powers or performing duties as a Director, act in a manner which he believes is in the best interests of the holding company even though it may not be in the best interests of the Company. |
10.5 | Each Director shall exercise his powers for a proper purpose and shall not act or agree to the Company acting in a manner that contravenes the Memorandum, the Articles or the Act. Each Director, in exercising his powers or performing his duties, shall act honestly and in good faith in what the Director believes to be the best interests of the Company. |
10.6 | Any Director which is a body corporate may appoint any individual as its duly authorised representative for the purpose of representing it at meetings of the Directors, with respect to the signing of consents or otherwise. |
10.7 | The continuing Directors may act notwithstanding any vacancy in their body. |
10.8 | Subject to Regulation 23.7, the Directors may by Resolution of Directors exercise all the powers of the Company to incur indebtedness, liabilities or obligations and to secure indebtedness, liabilities or obligations whether of the Company or of any third party, provided always that if the same occurs prior to the consummation of a Business Combination, the Company must first obtain from the lender a waiver of any right, title, interest or claim of any kind in or to any monies held in the Trust Account. |
10.9 | All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by Resolution of Directors. |
10.10 | Section 175 of the Act shall not apply to the Company. |
11 | PROCEEDINGS OF DIRECTORS |
11.1 | Any one Director of the Company may call a meeting of the Directors by sending a written notice to each other Director. |
11.2 | The Directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the British Virgin Islands as the notice calling the meeting provides. |
11.3 | A Director is deemed to be present at a meeting of Directors if he participates by telephone or other electronic means and all Directors participating in the meeting are able to hear each other. |
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11.4 | Until the consummation of a Business Combination, a Director may not appoint an alternate. Following the consummation of a Business Combination, a Director may by a written instrument appoint an alternate who need not be a Director, any such alternate shall be entitled to attend meeting in the absence of the Director who appointed him and to vote or consent in place of the Director until the appointment lapses or is terminated. |
11.5 | A Director shall be given not less than three days' notice of meetings of Directors, but a meeting of Directors held without three days' notice having been given to all Directors shall be valid if all the Directors entitled to vote at the meeting who do not attend waive notice of the meeting, and for this purpose the presence of a Director at a meeting shall constitute waiver by that Director. The inadvertent failure to give notice of a meeting to a Director, or the fact that a Director has not received the notice, does not invalidate the meeting. |
11.6 | A meeting of Directors is duly constituted for all purposes if at the commencement of the meeting there are present in person or, following the consummation of a Business Combination, by alternate not less than one-half of the total number of Directors, unless there are only two Directors in which case the quorum is two. |
11.7 | If the Company has only one Director the provisions herein contained for meetings of Directors do not apply and such sole Director has full power to represent and act for the Company in all matters as are not by the Act, the Memorandum or the Articles required to be exercised by the Members. In lieu of minutes of a meeting the sole Director shall record in writing and sign a note or memorandum of all matters requiring a Resolution of Directors. Such a note or memorandum constitutes sufficient evidence of such resolution for all purposes. |
11.8 | At meetings of Directors at which the Chairman of the Board is present, he shall preside as chairman of the meeting. If there is no Chairman of the Board or if the Chairman of the Board is not present, the Directors present shall choose one of their number to be chairman of the meeting. If the Directors are unable to choose a chairman for any reason, then the oldest individual Director present (and for this purpose an alternate Director shall be deemed to be the same age as the Director that he represents) shall take the chair. |
11.9 | An action that may be taken by the Directors or a committee of Directors at a meeting may also be taken by a Resolution of Directors or a resolution of a committee of Directors consented to in writing by all Directors or by all members of the committee, as the case may be, without the need for any notice. The consent may be in the form of counterparts each counterpart being signed by one or more Directors. If the consent is in one or more counterparts, and the counterparts bear different dates, then the resolution shall take effect on the date upon which the last Director has consented to the resolution by signed counterparts. |
12 | COMMITTEES |
12.1 | The Directors may, by Resolution of Directors, designate one or more committees, each consisting of one or more Directors, and delegate one or more of their powers, including the power to affix the Seal, to the committee. |
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12.2 | The Directors have no power to delegate to a committee of Directors any of the following powers: |
(a) | to amend the Memorandum or the Articles; |
(b) | to designate committees of Directors; |
(c) | to delegate powers to a committee of Directors; |
(d) | to appoint Directors; |
(e) | to appoint an agent; |
(f) | to approve a plan of merger, consolidation or arrangement; or |
(g) | to make a declaration of solvency or to approve a liquidation plan. |
12.3 | Regulations 12.2(b) and (c) do not prevent a committee of Directors, where authorised by the Resolution of Directors appointing such committee or by a subsequent Resolution of Directors, from appointing a sub-committee and delegating powers exercisable by the committee to the sub-committee. |
12.4 | The meetings and proceedings of each committee of Directors consisting of 2 or more Directors shall be governed mutatis mutandis by the provisions of the Articles regulating the proceedings of Directors so far as the same are not superseded by any provisions in the Resolution of Directors establishing the committee. |
13 | OFFICERS AND AGENTS |
13.1 | The Company may by Resolution of Directors appoint officers of the Company at such times as may be considered necessary or expedient. Such officers may consist of a Chairman of the Board of Directors, a Chief Executive Officer, a President, a Chief Financial Officer (in each case there may be more than one of such officers), one or more vice-presidents, secretaries and treasurers and such other officers as may from time to time be considered necessary or expedient. Any number of offices may be held by the same person. |
13.2 | The officers shall perform such duties as are prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by Resolution of Directors. In the absence of any specific prescription of duties it shall be the responsibility of the Chairman of the Board (or Co-Chairman, as the case may be) to preside at meetings of Directors and Members, the Chief Executive Officer (or Co-Chief Executive Officer, as the case may be) to manage the day to day affairs of the Company, the vice-presidents to act in order of seniority in the absence of the Chief Executive Officer (or Co-Chief Executive Officer, as the case may be) but otherwise to perform such duties as may be delegated to them by the Chief Executive Officer (or Co-Chief Executive Officer, as the case may be), the secretaries to maintain the share register, minute books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the treasurer to be responsible for the financial affairs of the Company. |
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13.3 | The emoluments of all officers shall be fixed by Resolution of Directors. |
13.4 | The officers of the Company shall hold office until their death, resignation or removal. Any officer elected or appointed by the Directors may be removed at any time, with or without cause, by Resolution of Directors. Any vacancy occurring in any office of the Company may be filled by Resolution of Directors. |
13.5 | The Directors may, by a Resolution of Directors, appoint any person, including a person who is a Director, to be an agent of the Company. An agent of the Company shall have such powers and authority of the Directors, including the power and authority to affix the Seal, as are set forth in the Articles or in the Resolution of Directors appointing the agent, except that no agent has any power or authority with respect to the matters specified in Regulation 12.1. The Resolution of Directors appointing an agent may authorise the agent to appoint one or more substitutes or delegates to exercise some or all of the powers conferred on the agent by the Company. The Directors may remove an agent appointed by the Company and may revoke or vary a power conferred on him. |
14 | CONFLICT OF INTERESTS |
14.1 | A Director of the Company shall, forthwith after becoming aware of the fact that he is interested in a transaction entered into or to be entered into by the Company, disclose the interest to all other Directors of the Company. |
14.2 | For the purposes of Regulation 14.1 , a disclosure to all other Directors to the effect that a Director is a member, Director or officer of another named entity or has a fiduciary relationship with respect to the entity or a named individual and is to be regarded as interested in any transaction which may, after the date of the entry or disclosure, be entered into with that entity or individual, is a sufficient disclosure of interest in relation to that transaction. |
14.3 | Provided that the requirements of Regulation 9.13 have first been satisfied, a Director of the Company who is interested in a transaction entered into or to be entered into by the Company may: |
(a) | vote on a matter relating to the transaction; |
(b) | attend a meeting of Directors at which a matter relating to the transaction arises and be included among the Directors present at the meeting for the purposes of a quorum; and |
(c) | sign a document on behalf of the Company, or do any other thing in his capacity as a Director, that relates to the transaction, |
and, subject to compliance with the Act and these Articles shall not, by reason of his office be accountable to the Company for any benefit which he derives from such transaction and no such transaction shall be liable to be avoided on the grounds of any such interest or benefit.
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15 | INDEMNIFICATION |
15.1 | Subject to the limitations hereinafter provided the Company may indemnify, hold harmless and exonerate against all direct and indirect costs, fees and Expenses of any type or nature whatsoever, any person who: |
(a) | is or was a party or is threatened to be made a party to any Proceeding by reason of the fact that such person is or was a Director, officer, key employee, adviser of the Company or who at the request of the Company; or |
(b) | is or was, at the request of the Company, serving as a Director of, or in any other capacity is or was acting for, another Enterprise. |
15.2 | The indemnity in Regulation 15.1 only applies if the relevant Indemnitee acted honestly and in good faith with a view to the best interests of the Company and, in the case of criminal proceedings, the Indemnitee had no reasonable cause to believe that his conduct was unlawful. |
15.3 | The decision of the Directors as to whether an Indemnitee acted honestly and in good faith and with a view to the best interests of the Company and as to whether such Indemnitee had no reasonable cause to believe that his conduct was unlawful is, in the absence of fraud, sufficient for the purposes of the Articles, unless a question of law is involved. |
15.4 | The termination of any Proceedings by any judgment, order, settlement, conviction or the entering of a nolle prosequi does not, by itself, create a presumption that the relevant Indemnitee did not act honestly and in good faith and with a view to the best interests of the Company or that such Indemnitee had reasonable cause to believe that his conduct was unlawful. |
15.5 | The Company may purchase and maintain insurance, purchase or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond in relation to any Indemnitee or who at the request of the Company is or was serving as a Director, officer or liquidator of, or in any other capacity is or was acting for, another Enterprise, against any liability asserted against the person and incurred by him in that capacity, whether or not the Company has or would have had the power to indemnify him against the liability as provided in these Articles. |
16 | RECORDS |
16.1 | The Company shall keep the following documents at the office of its registered agent: |
(a) | the Memorandum and the Articles; |
(b) | the share register, or a copy of the share register; |
(c) | the register of Directors, or a copy of the register of Directors; and |
(d) | copies of all notices and other documents filed by the Company with the Registrar of Corporate Affairs in the previous 10 years. |
27 |
16.2 | If the Company maintains only a copy of the share register or a copy of the register of Directors at the office of its registered agent, it shall: |
(a) | within 15 days of any change in either register, notify the registered agent in writing of the change; and |
(b) | provide the registered agent with a written record of the physical address of the place or places at which the original share register or the original register of Directors is kept. |
16.3 | The Company shall keep the following records at the office of its registered agent or at such other place or places, within or outside the British Virgin Islands, as the Directors may determine: |
(a) | minutes of meetings and Resolutions of Members and classes of Members; |
(b) | minutes of meetings and Resolutions of Directors and committees of Directors; and |
(c) | an impression of the Seal, if any. |
16.4 | Where any original records referred to in this Regulation are maintained other than at the office of the registered agent of the Company, and the place at which the original records is changed, the Company shall provide the registered agent with the physical address of the new location of the records of the Company within 14 days of the change of location. |
16.5 | The records kept by the Company under this Regulation shall be in written form or either wholly or partly as electronic records complying with the requirements of the Electronic Transactions Act. |
17 | REGISTERS OF CHARGES |
17.1 | The Company shall maintain at the office of its registered agent a register of charges in which there shall be entered the following particulars regarding each mortgage, charge and other encumbrance created by the Company: |
(a) | the date of creation of the charge; |
(b) | a short description of the liability secured by the charge; |
(c) | a short description of the property charged; |
(d) | the name and address of the trustee for the security or, if there is no such trustee, the name and address of the chargee; |
(e) | unless the charge is a security to bearer, the name and address of the holder of the charge; and |
(f) | details of any prohibition or restriction contained in the instrument creating the charge on the power of the Company to create any future charge ranking in priority to or equally with the charge. |
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18 | CONTINUATION |
The Company may by Resolution of Members or by a Resolution of Directors continue as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands in the manner provided under those laws.
19 | SEAL |
The Company may have more than one Seal and references herein to the Seal shall be references to every Seal which shall have been duly adopted by Resolution of Directors. The Directors shall provide for the safe custody of the Seal and for an imprint thereof to be kept at the registered office. Except as otherwise expressly provided herein the Seal when affixed to any written instrument shall be witnessed and attested to by the signature of any one Director or other person so authorised from time to time by Resolution of Directors. Such authorisation may be before or after the Seal is affixed, may be general or specific and may refer to any number of sealings. The Directors may provide for a facsimile of the Seal and of the signature of any Director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been attested to as hereinbefore described.
20 | ACCOUNTS AND AUDIT |
20.1 | The Company shall keep records that are sufficient to show and explain the Company's transactions and that will, at any time, enable the financial position of the Company to be determined with reasonable accuracy. |
20.2 | The Company may by Resolution of Members call for the Directors to prepare periodically and make available a profit and loss account and a balance sheet. The profit and loss account and balance sheet shall be drawn up so as to give respectively a true and fair view of the profit and loss of the Company for a financial period and a true and fair view of the assets and liabilities of the Company as at the end of a financial period. |
20.3 | The Company may by Resolution of Members call for the accounts to be examined by auditors. |
20.4 | If the Shares are listed or quoted on the Designated Stock Exchange, and if required by the Designated Stock Exchange, the Directors shall establish and maintain an audit committee as a committee of the Board of Directors, the composition and responsibilities of which shall comply with the rules and regulations of the SEC and the Designated Stock Exchange subject to any available exemptions therefrom and the operation of the Act. The audit committee shall meet at least once every financial quarter, or more frequently as circumstances dictate. |
20.5 | If the Shares are listed or quoted on a Designated Stock Exchange that requires the Company to have an audit committee, the Directors shall adopt a formal written audit committee charter and review and assess the adequacy of the formal written charter on an annual basis. |
20.6 | If the Shares are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and, if required, shall utilise the audit committee for the review and approval of potential conflicts of interest. |
29 |
20.7 | If applicable, and subject to applicable law and the rules of the SEC and the Designated Stock Exchange: |
(a) | at the AGM or at a subsequent extraordinary general meeting in each year, the Members shall appoint an auditor who shall hold office until the Members appoint another auditor. Such auditor may be a Member but no Director or officer or employee of the Company shall during, his continuance in office, be eligible to act as auditor; |
(b) | a person, other than a retiring auditor, shall not be capable of being appointed auditor at an AGM unless notice in writing of an intention to nominate that person to the office of auditor has been given not less than ten days before the AGM and furthermore the Company shall send a copy of such notice to the retiring auditor; and |
(c) | the Members may, at any meeting convened and held in accordance with these Articles, by resolution remove the auditor at any time before the expiration of his term of office and shall by resolution at that meeting appoint another auditor in his stead for the remainder of his term. |
20.8 | The remuneration of the auditors shall be fixed by Resolution of Directors in such manner as the Directors may determine or in a manner required by the rules and regulations of the Designated Stock Exchange and the SEC. |
20.9 | The auditors shall examine each profit and loss account and balance sheet required to be laid before a meeting of the Members or otherwise given to Members and shall state in a written report whether or not: |
(a) | in their opinion the profit and loss account and balance sheet give a true and fair view respectively of the profit and loss for the period covered by the accounts, and of the assets and liabilities of the Company at the end of that period; and |
(b) | all the information and explanations required by the auditors have been obtained. |
20.10 | The report of the auditors shall be annexed to the accounts and shall be read at the meeting of Members at which the accounts are laid before the Company or shall be otherwise given to the Members. |
20.11 | Every auditor of the Company shall have a right of access at all times to the books of account and vouchers of the Company, and shall be entitled to require from the Directors and officers of the Company such information and explanations as he thinks necessary for the performance of the duties of the auditors. |
20.12 | The auditors of the Company shall be entitled to receive notice of, and to attend any meetings of Members at which the Company's profit and loss account and balance sheet are to be presented. |
30 |
21 | NOTICES |
21.1 | Any notice, information or written statement to be given by the Company to Members may be given by personal service by mail, facsimile or other similar means of electronic communication, addressed to each Member at the address shown in the share register. |
21.2 | Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company. |
21.3 | Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was delivered to the registered office or the registered agent of the Company or that it was mailed in such time as to admit to its being delivered to the registered office or the registered agent of the Company in the normal course of delivery within the period prescribed for service and was correctly addressed and the postage was prepaid. |
22 | VOLUNTARY WINDING UP |
The Company may by a Resolution of Members or by a Resolution of Directors appoint a voluntary liquidator.
23 | BUSINESS COMBINATION |
23.1 | Regulations 23.1 to 23.12 and Regulation 9.1(b) shall terminate upon consummation of any Business Combination and may not be amended during the Target Business Acquisition Period except as otherwise provided in these Articles. |
23.2 | In the event that the Company does not consummate a Business Combination prior to the expiration of 18 months after the closing of the IPO (or 21 or 24 months from the closing of the IPO should the period of time to consummate a Business Combination be extended as described in the Registration Statement - as defined at Regulation 23.10 below) (such date being referred to as the Termination Date ), such failure shall trigger an automatic redemption of the Public Shares (an Automatic Redemption Event ) and the Directors of the Company shall take all such action necessary (i) as promptly as reasonably possible but no more than five (5) Business Days thereafter to redeem the Public Shares (as defined below) or distribute the Trust Account to the holders of Public Shares, on a pro rata basis, in cash at a per-share amount equal to the applicable Per-Share Redemption Price; and (ii) as promptly as practicable, to cease all operations except for the purpose of making such distribution and any winding up of the Company's affairs. In the event of an Automatic Redemption Event, only the holders of Public Shares shall be entitled to receive pro rata redeeming distributions from the Trust Account with respect to their Public Shares. |
23.3 | Unless a shareholder vote is required by law or the rules of the Designated Stock Exchange, or, at the sole discretion of the Directors, the Directors determine to hold a shareholder vote for business or other reasons, the Company may enter into a Business Combination without submitting such Business Combination to its Members for approval. |
31 |
23.4 | Although not required, in the event that a shareholder vote is held, and a majority of the votes cast at the meeting to approve the Business Combination are voted for the approval of such Business Combination, the Company shall be authorised to consummate the Business Combination. |
23.5 |
(a) | In the event that a Business Combination is consummated by the Company, the Company will offer to redeem the Shares of any Member issued in the IPO other than those Shares held by Initial Shareholders or their affiliates, Directors or Officers (the " Public Shares ") for cash in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act and subject to any limitations (including but not limited to cash requirements) set forth in the definitive transaction agreements related to the initial Business Combination (the " Tender Redemption Offer "). The Company will file tender offer documents with the SEC prior to consummating the Business Combination which contain substantially the same financial and other information about the Business Combination and the redemption rights as would be required in a proxy solicitation pursuant to Regulation 14A of the Exchange Act. In accordance with the Exchange Act, the Tender Redemption Offer will remain open for a minimum of 20 Business Days and the Company will not be permitted to consummate its Business Combination until the expiry of such period. If in the event a Member holding Public Shares accepts the Tender Redemption Offer and the Company has not otherwise withdrawn the tender offer, the Company shall, promptly after the consummation of the Business Combination, pay such redeeming Member, on a pro rata basis, cash equal to the applicable Per-Share Redemption Price. |
(b) | In the event that a Business Combination is consummated by the Company in connection with a shareholder vote held pursuant to Regulation 23.4 in accordance with a proxy solicitation pursuant to Regulation 14A of the Exchange Act (the Redemption Offer ), the Company will offer to redeem the Public Shares, regardless of whether such shares are voted for or against the Business Combination, for cash, on a pro rata basis, at a per-share amount equal to the applicable Per-Share Redemption Price; provided, that any such redeeming Member who either individually or together with any affiliate of his or any other person with whom he is acting in concert or as a "group" (as such term is defined under Section 13 of the Exchange Act) shall not be permitted to redeem more than fifteen percent (15%) of the total Public Shares sold in the IPO. |
(c) | In no event will the Company consummate the Tender Redemption Offer or the Redemption Offer under Regulation 23.5(a) or (b) if such redemptions would cause the Company to have net tangible assets to be less than US$5,000,001. |
23.6 | A holder of Public Shares shall be entitled to receive distributions from the Trust Account only in the event of an Automatic Redemption Event, an Amendment Redemption Event or in the event he accepts a Tender Redemption Offer or a Redemption Offer where the Business Combination is consummated. In no other circumstances shall a holder of Public Shares have any right or interest of any kind in or to the Trust Account. |
32 |
23.7 | Prior to a Business Combination, the Company will not issue any Securities (other than Public Shares) that would entitle the holder thereof to (i) receive funds from the Trust Account; or (ii) vote on any Business Combination. |
23.8 | The Business Combination must be approved by a majority of the independent members of the Board of Directors. In the event the Company enters into a Business Combination (i) with a company that is affiliated with the Sponsor, Initial Shareholders, officers or Directors; or (ii) partnering, submitting joint bids or entering into any similar transaction with the Sponsor, or an affiliate of the Sponsor, the Company will obtain an opinion from an independent investment banking firm that is a member of FINRA reasonably acceptable to EarlyBirdCapital, Inc. that such a Business Combination is fair to the holders of the Public Shares from a financial point of view. |
23.9 | The Company will not effectuate a Business Combination with another "blank cheque" company or a similar company with nominal operations. |
23.10 | Immediately after the Company's IPO, the amount of net offering proceeds received by the Company in the IPO (including proceeds of any exercise of the underwriter's over-allotment option and any proceeds from the simultaneous private placement of like securities and rights by the Company) as described in the Company's registration statement on Form S-1 filed with the SEC (the Registration Statement ) at the time it goes effective shall be deposited and thereafter held in the Trust Account. Neither the Company nor any officer, Director or employee of the Company will disburse any of the proceeds held in the Trust Account until the earlier of (i) a Business Combination, or (ii) an Automatic Redemption Event or in payment of the acquisition price for any shares which the Company elects to purchase, redeem or otherwise acquire in accordance with these Articles, in each case in accordance with the trust agreement governing the Trust Account; provided that (a) all that interest earned on the Trust Account (as described in the Registration Statement) may be released from time to time to the Company to cover operating expenses, and (b) the Company is entitled to withdraw such amounts from the Trust Account from time to time as would be required to pay any taxes on the interest earned on the Trust Account |
23.11 | In the event the Directors of the Company propose any amendment to Regulation 23 prior to (but not in conjunction with) the consummation of a Business Combination (an Amendment ) and such Amendment is (i) duly approved by a Resolution of Members; and (ii) the amended Articles are filed at the Registry of Corporate Affairs (an Approved Amendment ), the Company will offer to redeem the Public Shares of any Member who voted all of its Shares against or did not consent in writing to (as relevant) the Resolution of Members approving the Approved Amendment, for cash, on a pro rata basis, at a per-share amount equal to the applicable Per-Share Redemption Price (an Amendment Redemption Event ). For the avoidance of doubt, an Amendment may not include any amendment that would affect the substance or timing of the Company's obligations as described in Regulation 23 to pay or to offer to pay the Per-Share Redemption Price to any holder of the Public Shares without the consent of that holder. |
We, Offshore Incorporations Limited of P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands, for the purpose of incorporating a BVI business company under the laws of the British Virgin Islands hereby sign these Articles of Association.
Dated: 4th day of April, 2014
Incorporator
…………………………………
(Sd.) Rexella D. Hodge
Authorised Signatory
OFFSHORE INCORPORATIONS LIMITED
33
Exhibit 4.1
NUMBER
U-__________
|
|
UNITS | ||
SEE
REVERSE FOR
CERTAIN DEFINITIONS |
DT ASIA INVESTMENTS LIMITED |
CUSIP G2615J 120
UNITS CONSISTING OF ONE ORDINARY SHARE, ONE RIGHT AND ONE WARRANT
THIS CERTIFIES THAT_________________________________________________________________
is the owner of ___________________________________________________________________________ Units.
Each Unit (“Unit”) consists of one (1) ordinary share, par value $.0001 per share, of DT ASIA INVESTMENTS LIMITED, a British Virgin Islands company (the “Company”), one (1) right (“Right”) and one (1) warrant (the “Warrants”). Each holder of a Right will automatically receive one-tenth (1/10) of a share upon the Company’s completion of an initial merger, share exchange, asset acquisition, share purchase, recapitalization, contractual arrangement, reorganization or other similar business combination with one or more businesses or entities (a “Business Combination”). Each Warrant entitles the holder to purchase one half (1/2) of one ordinary share for $12.00 per whole share (subject to adjustment) and may only be exercised for a whole number of ordinary shares. Each Warrant will become exercisable commencing on the later of (a) __________ __, 2015 [one year from the date of the final prospectus] and (b) the Company’s completion of a Business Combination and will expire unless exercised before 5:00 p.m., New York City Time, five years after the completion by Company of an initial Business Combination (the “Expiration Date”). The ordinary share, Rights and Warrants comprising the Units represented by this certificate are not transferable separately prior to the ninetieth (90 th ) day after the date of the prospectus relating to the Company’s initial public offering, unless EarlyBirdCapital, Inc. determines that an earlier date is acceptable. The terms of the Rights are set forth in the prospectus as well as a Rights Agreement, dated as of _______, 2014 between the Company and Continental Stock Transfer & Trust Company, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. The terms of the Warrants are governed by a Warrant Agreement, dated as of _______, 2014, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Rights Agreement and the Warrant Agreement are on file at the office of the Warrant Agent at 17 Battery Place, New York, New York 10004, and are available to any Right holder or Warrant holder on written request and without cost.
This certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
By | |||
SEAL | |||
Chairman |
2014
|
Chief Executive Officer |
DT ASIA INVESTMENTS LIMITED
The Company will furnish without charge to each shareholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – | as tenants in common | UNIF GIFT MIN ACT - | _____ Custodian ______ |
TEN ENT – | as tenants by the entireties | (Cust) (Minor) | |
JT TEN – | as joint tenants with right of survivorship and not as tenants in common | under Uniform Gifts to Minors and not as tenants in common Act ______________ | |
(State) |
Additional Abbreviations may also be used though not in the above list.
For value received, ___________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
|
||
Units represented by the within Certificate, and do hereby irrevocably constitute and appoint___________________________________________________________________________Attorney
to transfer the said Units on the books of the within named Company will full power of substitution in the premises.
The holder of this certificate shall be entitled to receive funds from the trust fund only in the event of the Company’s liquidation upon failure to consummate a business combination or if the holder seeks to redeem his shares upon consummation of such business combination or in connection with certain amendments to the Company’s Amended and Restated Memorandum and Articles of Association. In no other circumstances shall the holder have any right or interest of any kind in or to the trust fund.
Exhibit 4.2
NUMBER | SHARES | |
______C |
DT ASIA INVESTMENTS LIMITED
INCORPORATED UNDER THE LAWS OF THE BRITISH VIRGIN ISLANDS
ORDINARY SHARES
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies that | CUSIP G2615J 104 | |
is the owner of |
FULLY PAID AND NON-ASSESSABLE ORDINARY SHARES OF NO PAR VALUE OF
DT ASIA INVESTMENTS LIMITED
transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.
The
Company will be forced to liquidate if it is unable to complete an initial business combination within eighteen months from the
closing of the Company’s initial public offering,
or within twenty-four months
if certain criteria are satisfied, all as more fully described in the Company’s final prospectus dated ________ __, 2014.
This certificate is not valid unless countersigned by the Transfer Agent and registered by the
Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized
officers.
Dated: | ||
SEAL | ||
CHAIRMAN | 2014 | CHIEF EXECUTIVE OFFICER |
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – | as tenants in common | UNIF GIFT MIN ACT - | _____ Custodian ______ |
TEN ENT – | as tenants by the entireties | (Cust) (Minor) | |
JT TEN – | as joint tenants with right of survivorship and not as tenants in common | under Uniform Gifts to Minors and not as tenants in common Act ______________ | |
(State) |
Additional Abbreviations may also be used though not in the above list.
DT ASIA INVESTMENTS LIMITED
The Company will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Amended and Restated Memorandum and Articles of Association and all amendments thereto and resolutions of the Board of Directors providing for the issue of Preferred Shares (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
For value received, ___________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
|
||
ordinary shares represented by the within Certificate, and do hereby irrevocably constitute and appoint
___________________________________________________________________________Attorney
to transfer the said shares on the books of the within named Company will full power of substitution in the premises.
The holder of this certificate shall be entitled to receive funds from the trust fund only in the event of the Company’s liquidation upon failure to consummate a business combination or if the holder seeks to redeem his shares upon consummation of such business combination or in connection with certain amendments to the Company’s Amended and Restated Memorandum and Articles of Association. In no other circumstances shall the holder have any right or interest of any kind in or to the trust fund.
Exhibit 4.3
NUMBER |
RIGHTS | |
______R |
DT ASIA INVESTMENTS LIMITED
A BRITISH VIRGIN ISLANDS COMPANY
RIGHT
SEE REVERSE FOR | ||||
CERTAIN DEFINITIONS |
CUSIP G2615J 112 |
THIS CERTIFIES THAT, for value received
is the registered holder of a right or rights (the “Right”) to automatically receive one-tenth of one ordinary share, no par value per share (“Ordinary Share”), of DT Asia Investments Limited (the “Company”) for each Right evidenced by this Rights Certificate on the Company’s completion of an initial business combination (as defined in the prospectus relating to the Company’s initial public offering (“Prospectus”)) upon surrender of this Rights Certificate pursuant to the Rights Agreement between the Company and Continental Stock Transfer & Trust Company. In no event will the Company be required to net cash settle any Right or issue a fractional Ordinary Share.
Upon liquidation of the Company in the event an initial business combination is not consummated during the required period as identified in the Company’s Amended and Restated Memorandum and Articles of Association, the Right shall expire and be worthless. The holder of a Right shall have no right or interest of any kind in the Company’s trust account (as defined in the Prospectus).
Upon due presentment for registration of transfer of the Right Certificate at the office or agency of Continental Stock Transfer & Trust Company, the Right Agent, a new Right Certificate or Right Certificates of like tenor and evidencing in the aggregate a like number of Rights shall be issued to the transferee in exchange for this Right Certificate, without charge except for any applicable tax or other governmental charge. The Company shall not issue fractional shares upon exchange of Rights. The Company reserves the right to deal with any fractional entitlement at the relevant time in any manner (as provided in the Rights Agreement).
The Company and the Right Agent may deem and treat the registered holder as the absolute owner of this Right Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any conversion hereof, of any distribution to the registered holder, and for all other purposes, and neither the Company nor the Right Agent shall be affected by any notice to the contrary.
This Right does not entitle the registered holder to any of the rights of a shareholder of the Company.
Dated: | ||
SEAL | ||
CHAIRMAN | 2014 | CHIEF EXECUTIVE OFFICER |
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – | as tenants in common | UNIF GIFT MIN ACT - | _____ Custodian ______ |
TEN ENT – | as tenants by the entireties | (Cust) (Minor) | |
JT TEN – | as joint tenants with right of survivorship and not as tenants in common | under Uniform Gifts to Minors Act ______________ | |
(State) |
Additional Abbreviations may also be used though not in the above list.
DT Asia Investments Limited
The Company will furnish without charge to each securityholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the rights represented thereby are issued and shall be held subject to all the provisions of the Memorandum and Articles of Association and all amendments thereto and resolutions of the Board of Directors providing for the issue of Preferred Shares (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
For value received, ___________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE) |
rights represented by the within Certificate, and do hereby irrevocably constitute and appoint
________________________________________________________________________________________Attorney
to transfer the said rights on the books of the within named Company will full power of substitution in the premises.
2
Exhibit 4.4
NUMBER
________ |
(SEE REVERSE SIDE FOR LEGEND)
THIS WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION DATE (DEFINED BELOW) |
WARRANTS |
DT ASIA INVESTMENTS LIMITED
CUSIP G2615J 138
WARRANT
THIS CERTIFIES THAT, for value received
is the registered holder of a warrant or warrants (the “Warrant”), expiring at 5:00 p.m., New York City time, on the five year anniversary of the completion by DT Asia Investments Limited, a British Virgin Islands company (the “Company”), of an initial merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization, contractual arrangements, or other similar business combination with one or more businesses or entities (a “Business Combination”), to purchase one half (1/2) of one fully paid and non-assessable ordinary share, no par value (“Shares”), of the Company for each Warrant evidenced by this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing on the later of (a) __________ __, 2015 [one year from the date of the final prospectus] and (b) the Company’s completion of a Business Combination, such whole number of Shares of the Company at the price of $12.00 per whole share, upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent, Continental Stock Transfer & Trust Company, but only subject to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer & Trust Company. In no event will the Company be required to net cash settle any warrant exercise. The Warrant Agreement provides that upon the occurrence of certain events the Warrant Price and the number of Shares purchasable hereunder, set forth on the face hereof, may, subject to certain conditions, be adjusted. The term Warrant Price as used in this Warrant Certificate refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised.
No fraction of a Share will be issued upon any exercise of a Warrant. A warrantholder may exercise its warrants only for a whole number of shares. This means that only an even number of warrants may be exercised at any given time by a warrantholder.
Upon any exercise of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant has not been exercised.
Warrant Certificates, when surrendered at the office or agency of the Warrant Agent by the registered holder hereof in person or by attorney duly authorized in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any applicable tax or other governmental charge.
The Company and the Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
This Warrant does not entitle the registered holder to any of the rights of a stockholder of the Company.
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The Company reserves the right to call the Warrant at any time prior to its exercise with a notice of call in writing to the holders of record of the Warrant, giving at least 30 days’ notice of such call, at any time while the Warrant is exercisable, if the last sale price of the Shares has been at least $18.00 per share on each of 20 trading days within any 30 trading day period (the “30-day trading period”) ending on the third business day prior to the date on which notice of such call is given and if, and only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants for each day of the 30-day trading period and continuing each day thereafter until the date of redemption. The call price of the Warrants is to be $.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $.01 call price.
By
Chairman | Chief Executive Officer |
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SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order to Exercise Warrants
The undersigned Registered Holder irrevocably elects to exercise ______________ Warrants represented by this Warrant Certificate, and to purchase the ordinary shares issuable upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and, if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder at the address stated below:
Dated: _____________________ | |
(SIGNATURE) | |
(ADDRESS) | |
(TAX IDENTIFICATION NUMBER) |
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ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
For Value Received, _______________________ hereby sell, assign, and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
______________________ of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.
Dated: _____________________ | |
(SIGNATURE) |
The signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or trust company or a member firm of the NYSE Amex, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock Exchange.
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Exhibit 4.5
WARRANT AGREEMENT
Agreement made as of ______, 2014 between DT Asia Investments Limited, a British Virgin Islands company, with offices at Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong (“Company”), and Continental Stock Transfer & Trust Company, a New York corporation, with offices at 17 Battery Place, New York, New York 10004 (“Warrant Agent”).
WHEREAS, the Company has received binding commitments (“Subscription Agreements”) from DeTiger Holdings Limited (“DHL”) and from EarlyBirdCapital, Inc. (“EBC”) to purchase up to an aggregate of 353,750 units, each unit (“Unit”) comprised of one Ordinary Share of the Company, no par value (“Ordinary Share”), one right to receive one-tenth of one Ordinary Share and one warrant to purchase one half of one Ordinary Share for $12.00, subject to adjustment as described herein, and in connection therewith, will issue and deliver up to an aggregate of 353,750 warrants (“Private Warrants”) upon consummation of such private placement (“Private Offering”); and
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of Units and, in connection therewith, will issue and deliver up to 6,900,000 warrants (“Public Warrants”) to the public investors and (ii) 600,000 warrants (underlying unit purchase options) to EBC or its designees (“EBC Warrants” and, together with the Private Warrants and Public Warrants, the “Warrants”); and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, No. 333-197187 (“Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”) of, among other securities, the Public Warrants and the Ordinary Shares issuable upon exercise of the Public Warrants; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent . The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. | Warrants . |
2.1. Form of Warrant . Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by the Chairman of the Board and Chief Executive Officer of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Effect of Countersignature . Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
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2.3. Registration .
2.3.1. Warrant Register . The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder . Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4. Detachability of Warrants . The securities comprising the Units will not be separately transferable until the ninetieth (90 th ) day after the date hereof unless EBC informs the Company of its decision to allow earlier separate trading, but in no event will separate trading of the securities comprising the Units begin until (i) the Company files a Current Report on Form 8-K which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Public Offering including the proceeds received by the Company from the exercise of the over-allotment option, if the over-allotment option is exercised on the date hereof, and (ii) the Company issues a press release and files a Current Report on Form 8-K announcing when such separate trading shall begin.
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2.5 Warrant Attributes .
2.5.1 Private Warrants . The Private Warrants will be issued in the same form as the Public Warrants but they (i) will be exercisable either for cash or on a cashless basis at the holder’s option pursuant to Section 3.3.1(c) and (ii) will not be redeemable by the Company, in either case as long as such warrants are held by the initial purchasers or their affiliates and permitted transferees (as provided below). The provisions of this Section 2.5.1 may not be modified, amended or deleted without the prior written consent of EBC. Prior to the date that is 30 days after the consummation by the Company of a Business Combination (as defined below), the Private Warrants held by members of DHL or EBC may only be transferred by the holders thereof:
(a) | to any persons (including their affiliates and shareholders) participating in the Private Offering, officer, director, securityholder, employee, member or affiliate of DHL, | |
(b) | to the Company’s officers, directors and employees, | |
(c) | as a distribution to partners, members or shareholders of DHL or EBC upon the liquidation and dissolution of DHL or EBC, as the case may be, | |
(d) | by bona fide gift to such person’s immediate family or to a trust, the beneficiary of which is a member of such person’s immediate family for estate planning purposes, | |
(e) | by virtue of the laws of descent and distribution upon death of such person, | |
(f) | pursuant to a qualified domestic relations order, | |
(g) | by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities, | |
(h) | by private sales made at or prior to the consummation of a Business Combination at prices no greater than the price at which the Private Warrants were originally purchased, or | |
(i) | in the event that, subsequent to the consummation of the Company’s initial Business Combination, the Company consummates a merger, stock exchange or other similar transaction that results in all of the holders of the Company’s equity securities issued in the Public Offering having the right to exchange their Ordinary Shares for cash, securities or other property. |
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2.5.2 EBC Warrants . The EBC Warrants shall have the same terms and be in the same form as the Public Warrants.
3. Terms and Exercise of Warrants
3.1. Warrant Price . Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions of such Warrant and of this Warrant Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $12.00 per whole share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Warrant Agreement refers to the price per share at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than 20 business days; provided, however, that the Company shall provide at least 10 business days prior written notice of such reduction to registered holders of the Warrants; provided, further, however, that any such reduction shall be applied consistently to all of the Warrants.
3.2. Duration of Warrants . A Warrant may be exercised only during the period (“Exercise Period”) commencing on the later of the consummation by the Company of a merger, share exchange, asset acquisition, share purchase, recapitalization, contractual arrangement, reorganization or other similar business combination with one or more businesses or entities (“Business Combination”) (as described more fully in the Registration Statement) and ________, 2015 [one year from the date of this agreement], and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) five years from the consummation of a Business Combination (ii) the liquidation of the Company, and (iii) the Redemption Date as provided in Section 6.2 of this Agreement (“Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in Section 7.4 below. Except with respect to the right to receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, however, that the Company will provide written notice to registered holders of the Warrants of such extension of not less than 20 days.
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3.3. Exercise of Warrants .
3.3.1. Payment . Subject to the provisions of the Warrant and this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each full Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, as follows:
(a) in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent;
(b) in the event of redemption pursuant to Section 6 hereof in which the Company’s management has elected to require all holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (defined below) by (y) the Fair Market Value, provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrant pursuant to Section 6 hereof; or
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(c) with respect to any Private Warrants, so long as such Private Warrants are held by the initial purchasers or their affiliates and permitted transferees (as prescribed in Section 5.6 hereof), by surrendering such Private Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the day prior to the Company’s receipt of the applicable exercise notice; or
(d) in the event the post-effective amendment or registration statement required by Section 7.4 hereof is not effective and current, then during the period beginning on the 91 st day after the closing of the Business Combination and ending upon the effectiveness of such post-effective amendment or registration statement, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, by surrendering such Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the day prior to the date of exercise.
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3.3.2. Issuance of Certificates . As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a certificate or certificates for the number of full Ordinary Shares to which he is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to which such Warrant shall not have been exercised. Subject to Section 4.7 of this Agreement, a registered holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares (i.e., only an even number of Warrants may be exercised at any given time by a registered holder). Notwithstanding the foregoing, in no event will the Company be required to net cash settle the Warrant exercise. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise would be unlawful.
3.3.3. Valid Issuance . All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance . Each person in whose name any such certificate for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books are open.
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3.3.5. Maximum Percentage . A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) business days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
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4. | Adjustments . |
4.1. Share Dividends - Split Ups . If after the date hereof, the number of outstanding Ordinary Shares is increased by a share dividend payable in Ordinary Shares, or by a split up of the Ordinary Shares, or other similar event, then, on the effective date of such share dividend, split up or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding Ordinary Shares. A rights offering to all holders of the Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Fair Market Value” (as defined below) shall be deemed a share dividend of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Ordinary Shares) multiplied by (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1, (i) if the rights offering is for securities convertible into or exercisable for Ordinary Shares, in determining the price payable for the Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, with the right to receive such rights.
4.2. Aggregation of Shares . If after the date hereof, the number of outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of the Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding Ordinary Shares.
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4.3 Extraordinary Dividends . If the Company, at any time while the Warrants (or rights to purchase the Warrants) are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Ordinary Shares on account of such Ordinary Shares (or other shares of the Company’s share capital into which the Warrants are convertible), other than (a) as described in subsection 4.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the conversion rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) as a result of the repurchase of Ordinary Shares by the Company in connection with an initial Business Combination or as otherwise permitted by the Investment Management Trust Agreement between the Company and the Warrant Agent dated of even date herewith, (e) or as a result of the issuance of Ordinary Shares as a result of conversion of the Rights issued in the Public Offering, or (f) in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value (as determined by the Company’s board of directors, in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.3, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
4.4 Adjustments in Exercise Price . Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.
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4.5. Replacement of Securities upon Reorganization, etc . In case of any reclassification or reorganization of the outstanding Ordinary Shares (other than a change covered by Section 4.1 or 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
4.6. Notices of Changes in Warrant . Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the warrant register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
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4.7. No Fractional Shares . Notwithstanding any provision contained in this Warrant Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up or down to the nearest whole number the number of the Ordinary Shares to be issued to the Warrant holder.
4.8. Form of Warrant . The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.9 Other Events . In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if such firm determines that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
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5. | Transfer and Exchange of Warrants . |
5.1. Registration of Transfer . The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants . Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants . The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate for a fraction of a warrant.
5.4. Service Charges . No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature . The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
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5.6. Private Warrants . The Warrant Agent shall not register any transfer of Private Warrants until after the consummation by the Company of a Business Combination, except for transfers made in accordance with Section 2.5 hereof, on the condition that prior to such registration for transfer, the Warrant Agent shall be presented with written documentation pursuant to which each transferee or the trustee or legal guardian for such transferee agrees to be bound by the terms of the Subscription Agreements.
6. | Redemption . |
6.1. Redemption . Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the price of $.01 per Warrant (“Redemption Price”), provided that the last sales price of the Ordinary Shares has been at least $18.00 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within any thirty (30) trading day period (“30-Day Trading Period”) ending on the third business day prior to the date on which notice of redemption is given and provided further that there is a current registration statement in effect with respect to the Ordinary Shares underlying the Warrants for each day in the 30-Day Trading Period and continuing each day thereafter until the Redemption Date (defined below).
6.2. Date Fixed for, and Notice of, Redemption . In the event the Company shall elect to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than 30 days prior to the Redemption Date to the registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.
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6.3. Exercise After Notice of Redemption . The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information necessary to calculate the number of Ordinary Shares to be received upon exercise of the Warrants, including the “Fair Market Value” in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Exclusion of Certain Warrants . The Company understands that the redemption rights provided for by this Section 6 apply only to outstanding Warrants. To the extent a person holds rights to purchase Warrants, such purchase rights shall not be extinguished by redemption. However, once such purchase rights are exercised, the Company may redeem the Warrants issued upon such exercise provided that the criteria for redemption is met. Additionally, any of the Private Warrants shall not be redeemable by the Company as long as such Private Warrants continue to be held by initial purchasers and affiliates or their permitted transferees (as prescribed in Section 5.6 hereof). However, once such Private Warrants are no longer held by the initial purchasers or their affiliates or permitted transferees, such Private Warrants shall then be redeemable by the Company pursuant to Section 6 hereof. The provisions of this Section 6.4 may not be modified, amended or deleted without the prior written consent of EBC.
7. | Other Provisions Relating to Rights of Holders of Warrants . |
7.1. No Rights as Shareholder . A Warrant does not entitle the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
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7.2. Lost, Stolen, Mutilated, or Destroyed Warrants . If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Ordinary Shares . The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Ordinary Shares . The Company agrees that as soon as practicable after the closing of a Business Combination, it shall use its best efforts to file with the SEC a post-effective amendment to the Registration Statement, or a new registration statement, for the registration, under the Act, of the Ordinary Shares issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to qualify for sale, in those states in which the Warrants were initially offered by the Company, the Ordinary Shares issuable upon exercise of the Warrants. In either case, the Company will use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement until the expiration of the Warrants in accordance with the provisions of this Agreement. In addition, the Company agrees to use its best efforts to register such securities under the blue sky laws of the states of residence of the exercising warrant holders to the extent an exemption is not available. If any such post-effective amendment or registration statement has not been declared effective by the 90-day anniversary following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 91 st day after the closing of the Business Combination and ending upon such post-effective amendment or registration statement being declared effective by the SEC, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section 3.3.1(d). The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the issuance of Ordinary Shares upon exercise of the Warrants on a cashless basis in accordance with this Section 7.4 is not required to be registered under the Act and (ii) the Ordinary Shares issued upon such exercise will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section 7.4. The provisions of this Section 7.4 may not be modified, amended or deleted without the prior written consent of EBC.
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8. | Concerning the Warrant Agent and Other Matters . |
8.1. Payment of Taxes . The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent .
8.2.1. Appointment of Successor Warrant Agent . The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
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8.2.2. Notice of Successor Warrant Agent . In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Ordinary Shares not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent . Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent .
8.3.1. Remuneration . The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
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8.3.2. Further Assurances . The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent .
8.4.1. Reliance on Company Statement . Whenever in the performance of its duties under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity . The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant Agent’s gross negligence, willful misconduct, or bad faith.
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8.4.3. Exclusions . The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares will when issued be valid and fully paid and nonassessable.
8.5. Acceptance of Agency . The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of Warrants.
8.6 Waiver . The Warrant Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
9. | Miscellaneous Provisions . |
9.1. Successors . All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
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9.2. Notices . Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
(852) 2110-0081
Attn: Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas,
New York, NY10105
Attn: Stuart Neuhauser, Esq.
and
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
Attn: David M. Nussbaum, Chairman
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9.3. Applicable Law . The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State 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 Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenience forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights under this Agreement . Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants and, for the purposes of Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof, EBC, any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. EBC shall be deemed to be a third-party beneficiary of this Agreement with respect to Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto (and EBC with respect to the Sections 2.5, 6.4, 7.4, 9.4 and 9.8 hereof) and their successors and assigns and of the registered holders of the Warrants.
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9.5. Examination of the Warrant Agreement . A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts . This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings . The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect the interpretation thereof.
9.8 Amendments . This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders. The provisions of this Section 9.8 may not be modified, amended or deleted without the prior written consent of EBC.
9.9
Severability
.
This Warrant Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall
not affect the validity or enforceability of this Warrant Agreement or of any other term or provision hereof. Furthermore, in
lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of
this Warrant Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: Stephen N. Cannon | ||
Title: Chief Executive Officer |
CONTINENTAL STOCK TRANSFER | ||
& TRUST COMPANY | ||
By: | ||
Name: | ||
Title: Vice President |
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Exhibit 4.6
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR A PERIOD OF ONE YEAR FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) EARLYBIRDCAPITAL, INC. (“ EBC ”) OR AN UNDERWRITER OR SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF EBC OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER, EXCEPT IN ACCORDANCE WITH FINRA RULE 5110(G)(2).
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF THE CONSUMMATION BY DT ASIA INVESTMENTS LIMITED (“ COMPANY ”) OF A MERGER, SHARE EXCHANGE, ASSET ACQUISITION, SHARE PURCHASE, RECAPITALIZATION, REORGANIZATION OR OTHER SIMILAR BUSINESS COMBINATION WITH ONE OR MORE ENTITIES (“ BUSINESS COMBINATION ”) (AS DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT (DEFINED HEREIN)) AND [ ], 2015. VOID AFTER 5:00 P.M. NEW YORK CITY LOCAL TIME, ON THE EXPIRATION DATE (DEFINED HEREIN).
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
600,000 UNITS
OF
DT ASIA INVESTMENTS LIMITED
1. Purchase Option .
THIS CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf of EarlyBirdCapital, Inc. (“ Holder ”), as registered owner of this Purchase Option, to DT Asia Investments Limited (“ Company ”), Holder is entitled, at any time or from time to time upon the later of the consummation of a Business Combination or _______, 2015 (“ Commencement Date ”), and at or before 5:00 p.m., New York City local time, on the five year anniversary of the effective date (“ Effective Date ”) of the Company’s registration statement (“ Registration Statement ”) pursuant to which Units are offered for sale to the public (“ Offering ”), but not thereafter (“ Expiration Date ”), to subscribe for, purchase and receive, in whole or in part, up to Six Hundred Thousand (600,000) units (“ Units ”) of the Company, each Unit consisting of one ordinary share of the Company, par value $0.0001 per share (“ Ordinary Shares ”), one right entitling the Holder to automatically receive one tenth (1/10) of an Ordinary Share upon consummation of a Business Combination, and one warrant (“ Warrant(s) ”), each to purchase one-half (1/2) of an Ordinary Share. Each Right is the same as the right included in the Units being registered for sale to the public by way of the Registration Statement (the “ Right(s) ”). Each Warrant is the same as the warrant included in the Units being registered for sale to the public by way of the Registration Statement (“ Public Warrants ”). If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Option may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate the Purchase Option. This Purchase Option is initially exercisable at $11.75 per Unit so purchased; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Option, including the exercise price per Unit and the number of Units (and Ordinary Shares, Rights and Warrants) to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.
2. Exercise.
2.1 Exercise Form . In order to exercise this Purchase Option, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Option and payment of the Exercise Price for the Units being purchased payable in cash or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., New York City local time, on the Expiration Date this Purchase Option shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
2.2 Legend . Each certificate for the securities purchased under this Purchase Option shall bear a legend as follows unless such securities have been registered under the Securities Act of 1933, as amended (“ Act ”):
“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (“Act”) or applicable state law. The securities may not be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Act, or pursuant to an exemption from registration under the Act and applicable state law.”
2.3 Cashless Exercise .
2.3.1 Determination of Amount . In lieu of the payment of the Exercise Price multiplied by the number of Units for which this Purchase Option is exercisable (and in lieu of being entitled to receive Ordinary Shares and Warrants) in the manner required by Section 2.1, the Holder shall have the right (but not the obligation) to convert any exercisable but unexercised portion of this Purchase Option into Units (“ Cashless Exercise Right ”) as follows: upon exercise of the Cashless Exercise Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Exercise Price in cash) that number of Units (or that number of Ordinary Shares, Rights and Warrants comprising that number of Units) equal to the quotient obtained by dividing (x) the “Value” (as defined below) of the portion of the Purchase Option being converted by (y) the Current Market Value (as defined below). The “Value” of the portion of the Purchase Option being converted shall equal the remainder derived from subtracting (a) (i) the Exercise Price multiplied by (ii) the number of Units underlying the portion of this Purchase Option being converted from (b) the Current Market Value of a Unit multiplied by the number of Units underlying the portion of the Purchase Option being converted. As used herein, the term “Current Market Value” per Unit at any date means: (A) in the event that neither the Units nor Public Warrants are still trading, the remainder derived from subtracting (x) the exercise price of the Warrants multiplied by the number of Ordinary Shares issuable upon exercise of the Warrants underlying one Unit from (y) (i) the Current Market Price of the Ordinary Shares multiplied by (ii) the number of Ordinary Shares underlying one Unit, which shall include one-tenth (1/10) of an Ordinary Share the holder of a Unit will automatically receive in connection with the Right included in each such Unit and one-half (1/2) of an Ordinary Shares underlying the Warrant included in each such Unit; (B) in the event that the Units, Ordinary Shares and Public Warrants are still trading, (i) if the Units are listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), the average reported last sale price of the Units in the principal trading market for the Units as reported by the exchange, Nasdaq or the Financial Industry Regulatory Authority (“ FINRA ”), as the case may be, for the five trading days preceding the date in question; or (ii) if the Units are not listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), but is traded in the residual over-the-counter market, the average reported last sale price for Units for the five trading days preceding the date in question for which such quotations are reported by the Pink Sheets, LLC or similar publisher of such quotations; and (C) in the event that the Units are not still trading but the Ordinary Share and Public Warrants underlying the Units are still trading, the Current Market Price of the Ordinary Share plus the product of (x) the Current Market Price of the Public Warrants and (y) the number of Ordinary Shares underlying the Warrants included in one Unit (including the Ordinary Shares underlying the Rights). The “ Current Market Price ” shall mean (i) if the Ordinary Shares (or Public Warrants, as the case may be) are listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), the average reported last sale price of the Ordinary Shares (or Public Warrants) in the principal trading market for the Ordinary Share as reported by the exchange, Nasdaq or FINRA, as the case may be, for the five trading days preceding the date in question; (ii) if the Ordinary Shares (or Public Warrants, as the case may be) are not listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), but are traded in the residual over-the-counter market, the average reported last sale price for the Ordinary Share (or Public Warrants) on for the five trading days preceding the date in question for which such quotations are reported by the Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the fair market value of the Ordinary Share cannot be determined pursuant to clause (i) or (ii) above, such price as the Board of Directors of the Company shall determine, in good faith. In the event the Public Warrants have expired and are no longer exercisable, no “Value” shall be attributed to the Warrants underlying this Purchase Option.
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2.3.2 Mechanics of Cashless Exercise . The Cashless Exercise Right may be exercised by the Holder on any business day on or after the Commencement Date and not later than the Expiration Date by delivering the Purchase Option with the duly executed exercise form attached hereto with the cashless exercise section completed to the Company, exercising the Cashless Exercise Right and specifying the total number of Units the Holder will purchase pursuant to such Cashless Exercise Right.
2.4 No Obligation to Net Cash Settle . Notwithstanding anything to the contrary contained in this Purchase Option, in no event will the Company be required to net cash settle the exercise of the Purchase Option or the Rights or Warrants underlying the Purchase Option. The holder of the Purchase Option and the Warrants underlying the Purchase Option will not be entitled to exercise the Purchase Option or the Warrants underlying such Purchase Option unless it exercises such Purchase Option pursuant to the Cashless Exercise Right or a registration statement is effective, or an exemption from the registration requirements is available at such time and, if the holder is not able to exercise the Purchase Option or underlying Warrants, the Purchase Option and/or the underlying Warrants, as applicable, will expire worthless.
3. Transfer .
3.1 General Restrictions . The registered Holder of this Purchase Option, by its acceptance hereof, agrees that it will not sell, transfer, assign, pledge or hypothecate this Purchase Option (or the Ordinary Shares, Rights and Warrants underlying this Purchase Option) for a period of 180 days pursuant to FINRA Conduct Rule 5110(g)(1) following the Effective Date to anyone other than (i) EBC or an underwriter or selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of EBC or of any such underwriter or selected dealer. On and after the first anniversary of the Effective Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with the Purchase Option and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five business days transfer this Purchase Option on the books of the Company and shall execute and deliver a new Purchase Option or Purchase Options of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Units purchasable hereunder or such portion of such number as shall be contemplated by any such assignment.
3.2 Restrictions Imposed by the Act . The securities evidenced by this Purchase Option shall not be transferred unless and until (i) the Company has received the opinion of counsel for the Holder that the securities may be transferred pursuant to an exemption from registration under the Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of Graubard Miller shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to such securities has been filed by the Company and declared effective by the Securities and Exchange Commission (the “ Commission ”) and compliance with applicable state securities law has been established.
4. New Purchase Options to be Issued .
4.1 Partial Exercise or Transfer . Subject to the restrictions in Section 3 hereof, this Purchase Option may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Option for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price (except to the extent that the Holder elects to exercise this Purchase Option by means of a cashless exercise as provided in Section 2.3 above) and/or transfer tax, the Company shall cause to be delivered to the Holder without charge a new Purchase Option of like tenor to this Purchase Option in the name of the Holder evidencing the right of the Holder to purchase the number of Units purchasable hereunder as to which this Purchase Option has not been exercised or assigned.
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4.2 Lost Certificate . Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Purchase Option and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a new Purchase Option of like tenor and date. Any such new Purchase Option executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.
5. Registration Rights .
5.1 Demand Registration .
5.1.1 Grant of Right . The Company, upon written demand (“ Initial Demand Notice ”) of the Holder(s) of at least 51% of the Purchase Options and/or the underlying Units and/or the underlying securities (“ Majority Holders ”), agrees to use its best efforts to register (the “ Demand Registration ”) under the Act on one occasion, all or any portion of the Purchase Options requested by the Majority Holders in the Initial Demand Notice and all of the securities underlying such Purchase Options, including the Units, Ordinary Shares, the Warrants and the Ordinary Shares underlying the Rights and the Warrants (collectively, the “ Registrable Securities ”). On such occasion, the Company will use its best efforts to file a registration statement or a post-effective amendment to the Registration Statement covering the Registrable Securities within sixty days after receipt of the Initial Demand Notice and use its best efforts to have such registration statement or post-effective amendment declared effective as soon as possible thereafter. The demand for registration may be made at any time during a period of five years beginning on the Effective Date. The Initial Demand Notice shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will notify all holders of the Purchase Options and/or Registrable Securities of the demand within ten days from the date of the receipt of any such Initial Demand Notice. Each holder of Registrable Securities who wishes to include all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “ Demanding Holder ”) shall so notify the Company within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 5.1.4. The Company shall not be obligated to effect more than one (1) Demand Registration under this Section 5.1 in respect of all Registrable Securities.
5.1.2 Effective Registration . A registration will not count as a Demand Registration until the registration statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto.
5.1.3 Underwritten Offering . If the Majority Holders so elect and such holders so advise the Company as part of the Initial Demand Notice, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Majority Holders.
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5.1.4 Reduction of Offering . If the managing underwriter or underwriters for a Demand Registration that is to be an underwritten offering advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights held by other shareholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “ Maximum Number of Shares ”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such Person has requested be included in such registration, regardless of the number of shares held by each such Person (such proportion is referred to herein as “ Pro Rata ”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other securities registrable pursuant to the terms of the Registration Rights Agreement between the Company and the initial investors in the Company and EBC (and/or its designees), dated as of June 25, 2014 (the “ Registration Rights Agreement ” and such registrable securities, the “ Investor Securities ”) as to which “piggy-back” registration has been requested by the holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares have not been reached under the foregoing clauses (i), (ii), and (iii), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Shares.
5.1.5 Withdrawal . If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the underwriter or underwriters of their request to withdraw prior to the effectiveness of the registration statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then the Company does not have to continue its obligations under Section 5.1 with respect to such proposed offering.
5.1.6 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities, including the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities, but the Holders shall pay any and all underwriting commissions. The Company agrees to use its reasonable best efforts to qualify or register the Registrable Securities in such states as are reasonably requested by the Majority Holder(s); provided, however, that in no event shall the Company be required to register the Registrable Securities in a state in which such registration would cause (i) the Company to be obligated to qualify to do business in such state, or would subject the Company to taxation as a foreign corporation doing business in such jurisdiction or (ii) the principal shareholders of the Company to be obligated to escrow their ordinary shares of the Company. The Company shall use its best efforts to cause any registration statement or post-effective amendment filed pursuant to the demand rights granted under Section 5.1.1 to remain effective for a period of nine consecutive months from the effective date of such registration statement or post-effective amendment.
5.2 Piggy-Back Registration .
5.2.1 Piggy-Back Rights . If at any time during the seven year period commencing on the Effective Date the Company proposes to file a registration statement under the Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company including, without limitation, pursuant to Section 5.1), other than a registration statement (i) filed in connection with any employee share option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following receipt of such notice (a “ Piggy-Back Registration ”). The Company shall cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Piggy-Back Registration.
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5.2.2 Reduction of Offering . If the managing underwriter or underwriters for a Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of Ordinary Shares which the Company desires to sell, taken together with Ordinary Shares, if any, as to which registration has been demanded pursuant to written contractual arrangements with persons other than the holders of Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 5.2, and the Ordinary Shares, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:
(a) If the registration is undertaken for the Company’s account: (A) first, the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities, if any, comprised of Registrable Securities and Investor Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C) third, to the extent that the Maximum Number of shares has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares;
(b) If the registration is a “demand” registration undertaken at the demand of holders of Investor Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares; and
(c) If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable Securities or of Investor Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), collectively the Ordinary Shares or other securities comprised of Registrable Securities and Investor Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof and of the Registration Rights Agreement, as applicable, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.
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5.2.3 Withdrawal . Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the registration statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a registration statement at any time prior to the effectiveness of the registration statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 5.2.4.
5.2.4 Terms . The Company shall bear all fees and expenses attendant to registering the Registrable Securities, including the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities but the Holders shall pay any and all underwriting commissions related to the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders of outstanding Registrable Securities with not less than fifteen days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each applicable registration statement filed (during the period in which the Purchase Option is exercisable) by the Company until such time as all of the Registrable Securities have been registered and sold. The Holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice, within ten days of the receipt of the Company’s notice of its intention to file a registration statement. The Company shall use its best efforts to cause any registration statement filed pursuant to the above “piggyback” rights to remain effective for at least nine months from the date that the Holders of the Registrable Securities are first given the opportunity to sell all of such securities.
5.3 General Terms .
5.3.1 Indemnification . The Company shall, to the fullest extent permitted by applicable law, indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (“ Exchange Act ”), against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against litigation, commenced or threatened, or any claim whatsoever whether arising out of any action between the underwriter and the Company or between the underwriter and any third party or otherwise) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the underwriters contained in Section 5 of the Underwriting Agreement between the Company, EBC and the other underwriters named therein dated the Effective Date. The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the underwriters have agreed to indemnify the Company.
5.3.2 Exercise of Purchase Options . Nothing contained in this Purchase Option shall be construed as requiring the Holder(s) to exercise their Purchase Options or Warrants underlying such Purchase Options prior to or after the initial filing of any registration statement or the effectiveness thereof.
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5.3.3 Documents Delivered to Holders . The Company shall furnish EBC, as representative of the Holders participating in any of the foregoing offerings, a signed counterpart, addressed to the participating Holders, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a “cold comfort” letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities. The Company shall also deliver promptly to EBC, as representative of the Holders participating in the offering, the correspondence and memoranda described below and copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit EBC, as representative of the Holders, to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as EBC, as representative of the Holders, shall reasonably request. The Company shall not be required to disclose any confidential information or other records to EBC, as representative of the Holders, or to any other person, until and unless such persons shall have entered into reasonable confidentiality agreements (in form and substance reasonably satisfactory to the Company), with the Company with respect thereto.
5.3.4 Underwriting Agreement . The Company shall enter into an underwriting agreement with the managing underwriter(s), if any, selected by any Holders whose Registrable Securities are being registered pursuant to this Section 5, which managing underwriter shall be reasonably acceptable to the Company. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution. Such Holders, however, shall agree to such covenants and indemnification and contribution obligations for selling shareholders as are customarily contained in agreements of that type used by the managing underwriter. Further, such Holders shall execute appropriate custody agreements and otherwise cooperate fully in the preparation of the registration statement and other documents relating to any offering in which they include securities pursuant to this Section 5. Each Holder shall also furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of the Registrable Securities.
5.3.5 Rule 144 Sale . Notwithstanding anything contained in this Section 5 to the contrary, the Company shall have no obligation pursuant to Sections 5.1 or 5.2 to use its best efforts to obtain the registration of Registrable Securities held by any Holder (i) where such Holder would then be entitled to sell under Rule 144 within any three-month period (or such other period prescribed under Rule 144 as may be provided by amendment thereof) all of the Registrable Securities then held by such Holder, and (ii) where the number of Registrable Securities held by such Holder is within the volume limitations under paragraph (e) of Rule 144 (calculated as if such Holder were an affiliate within the meaning of Rule 144).
5.3.6 Supplemental Prospectus . Each Holder agrees, that upon receipt of any notice from the Company of the happening of any event as a result of which the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, such Holder will immediately discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Holder’s receipt of the copies of a supplemental or amended prospectus, and, if so desired by the Company, such Holder shall deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of such destruction) all copies, other than permanent file copies then in such Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice.
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6. Adjustments.
6.1 Adjustments to Exercise Price and Number of Securities . The Exercise Price and the number of Units underlying the Purchase Option shall be subject to adjustment from time to time as hereinafter set forth:
6.1.1 Share Dividends - Split-Ups . If after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Ordinary Shares is increased by a share dividend payable in Ordinary Shares or by a split-up of Ordinary Shares or other similar event, then, on the effective date thereof, the number of Ordinary Shares underlying each of the Units purchasable hereunder shall be increased in proportion to such increase in outstanding shares. In such case, the number of Ordinary Shares, and the exercise price applicable thereto, underlying the Rights and the Warrants underlying each of the Units purchasable hereunder shall be adjusted in accordance with the terms of the Rights and the Warrants, as the case may be.
6.1.2 Aggregation of Shares . If after the date hereof, and subject to the provisions of Section 6.3, the number of outstanding Ordinary Shares is decreased by a consolidation, combination or reclassification of Ordinary Shares or other similar event, then, on the effective date thereof, the number of Ordinary Shares underlying each of the Units purchasable hereunder shall be decreased in proportion to such decrease in outstanding shares. In such case, the number of Ordinary Shares, and the exercise price applicable thereto, underlying the Warrants underlying each of the Units purchasable hereunder shall be adjusted in accordance with the terms of the Warrants.
6.1.3 Replacement of Securities upon Reorganization, etc . In case of any reclassification or reorganization of the outstanding Ordinary Shares other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of such Ordinary Shares, or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Option shall have the right thereafter (until the expiration of the right of exercise of this Purchase Option) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of Ordinary Shares of the Company obtainable upon exercise of this Purchase Option and the underlying Rights and Warrants immediately prior to such event; and if any reclassification also results in a change in Ordinary Shares covered by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
6.1.4 Changes in Form of Purchase Option . This form of Purchase Option need not be changed because of any change pursuant to this Section, and Purchase Options issued after such change may state the same Exercise Price and the same number of Units as are stated in the Purchase Options initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Options reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Commencement Date or the computation thereof.
6.2 Substitute Purchase Option . In case of any consolidation of the Company with, or merger of the Company with, or merger of the Company into, another corporation (other than a consolidation or merger which does not result in any reclassification or change of the outstanding Ordinary Shares), the corporation formed by such consolidation or merger shall execute and deliver to the Holder a supplemental Purchase Option providing that the holder of each Purchase Option then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Option) to receive, upon exercise of such Purchase Option, the kind and amount of shares and other securities and property receivable upon such consolidation or merger, by a holder of the number of Ordinary Shares of the Company for which such Purchase Option might have been exercised immediately prior to such consolidation, merger, sale or transfer. Such supplemental Purchase Option shall provide for adjustments which shall be identical to the adjustments provided in Section 6. The above provision of this Section shall similarly apply to successive consolidations or mergers.
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6.3 Elimination of Fractional Interests . The Company shall not be required to issue certificates representing fractions of Ordinary Shares or Warrants upon the exercise of the Purchase Option, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up to the nearest whole number of Warrants, Ordinary Shares or other securities, properties or rights.
7. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized but unissued Ordinary Shares, solely for the purpose of issuance upon exercise of the Purchase Options (including the Ordinary Shares underlying the Rights) or the Warrants underlying the Purchase Option, such number of Ordinary Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Purchase Options and payment of the Exercise Price therefor, all Ordinary Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any shareholder. The Company further covenants and agrees that upon exercise of the Warrants underlying the Purchase Options and payment of the respective Warrant exercise price therefor, all Ordinary Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any shareholder. As long as the Purchase Options shall be outstanding, the Company shall use its best efforts to cause all (i) Units and Ordinary Shares issuable upon exercise of the Purchase Options (including the Ordinary Shares underlying the Rights), (ii) Rights issuable upon exercise of the Purchase Options, (iii) Warrants issuable upon exercise of the Purchase Options and (iv) Ordinary Shares issuable upon exercise of the Warrants included in the Units issuable upon exercise of the Purchase Option to be listed (subject to official notice of issuance) on all securities exchanges (or, if applicable on the OTC Bulletin Board or any successor trading market) on which the Units, the Ordinary Shares or the Public Warrants issued to the public in connection herewith may then be listed and/or quoted.
8. Certain Notice Requirements .
8.1 Holder’s Right to Receive Notice . Nothing herein shall be construed as conferring upon the Holders the right to vote or consent as a shareholder for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. If, however, at any time prior to the expiration of the Purchase Options and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the shareholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other shareholders of the Company at the same time and in the same manner that such notice is given to the shareholders.
8.2 Events Requiring Notice . The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Ordinary Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, or (ii) the Company shall offer to all the holders of its Ordinary Shares any additional shares of the Company or securities convertible into or exchangeable for shares of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all or substantially all of its property, assets and business shall be proposed.
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8.3 Notice of Change in Exercise Price . The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holders of such event and change (“ Price Notice ”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s President and Chief Financial Officer.
8.4 Transmittal of Notices . All notices, requests, consents and other communications under this Purchase Option shall be in writing and shall be deemed to have been duly made when hand delivered, or mailed by express mail or private courier service: (i) if to the registered Holder of the Purchase Option, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to the following address or to such other address as the Company may designate by notice to the Holders:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Attn: Chief Executive Officer
Fax.: [__]
Email: [__]
9. Miscellaneous.
9.1 Amendments . The Company and EBC may from time to time supplement or amend this Purchase Option without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and EBC may deem necessary or desirable and that the Company and EBC deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.
9.2 Headings . The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Option.
9.3 Entire Agreement . This Purchase Option (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Option) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
9.4 Binding Effect . This Purchase Option shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Option or any provisions herein contained.
9.5 Governing Law; Submission to Jurisdiction . This Purchase Option 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. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Option shall be resolved through final and biding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators. The Company hereby appoints, without power of revocation, Graubard Miller, 405 Lexington Avenue New York, New York 10174 Fax No.: (212) 818-8881 Attn: David Alan Miller, Esq., as agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of this Purchase Option.
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9.6 Waiver, Etc . The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Option shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Option or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Option 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 or non-compliance.
9.7 Execution in Counterparts . This Purchase Option may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto.
9.8 Exchange Agreement . As a condition of the Holder’s receipt and acceptance of this Purchase Option, Holder agrees that, at any time prior to the complete exercise of this Purchase Option by Holder, if the Company and EBC enter into an agreement (“ Exchange Agreement ”) pursuant to which they agree that all outstanding Purchase Options will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.
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IN WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by its duly authorized officer as of the ____ day of ___________, 2014.
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: | ||
Title: |
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Form to be used to exercise Purchase Option:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Fax No.: [__]
Attn.: Chief Executive Officer
Date:_________________, 20___
The undersigned hereby elects irrevocably to exercise all or a portion of the within Purchase Option and to purchase ____ Units of Garnero Group Acquisition Company and hereby makes payment of $____________ (at the rate of $_________ per Unit) in payment of the Exercise Price pursuant thereto. Please issue the securities as to which this Purchase Option is exercised in accordance with the instructions given below.
or
The undersigned hereby elects irrevocably to convert its right to purchase _________ Units purchasable under the within Purchase Option by surrender of the unexercised portion of the attached Purchase Option (with a “Value” based of $_______ based on a “Market Price” of $_______). Please issue the securities comprising the Units as to which this Purchase Option is exercised in accordance with the instructions given below.
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the purchase option in every particular, without alteration or enlargement or any change whatever. |
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). |
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INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name
(Print in Block Letters) |
Address
15 |
Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Option):
FOR VALUE RECEIVED,______________________________________________ does hereby sell, assign and transfer unto___________________________________________ the right to purchase __________ Units of DT Asia Investments Limited (“ Company ”) evidenced by the within Purchase Option and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: ___________________, 20__
Signature | |
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the purchase option in every particular, without alteration or enlargement or any change whatever. |
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). |
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Exhibit 5.1
Direct line: +1 284 852 7307
Direct Email: simon.schilder@ogier.com
[ ● ] 2014
DT Asia Investments Limited
Room 1102, 11/F
Beautiful Group Tower
77 Connaught Road Central
Hong Kong
Dear Sirs
DT Asia Investments Limited ( the Company)
We have acted as counsel as to British Virgin Islands law to the Company in connection with the Company’s registration statement on Form S-1, including all amendments or supplements to such form filed with the Securities and Exchange Commission ( Commission ) under the United States Securities Act of 1933, as amended ( Act ) (File No. [ ]) ( Registration Statement ), related to the offering and sale of (i) up to [6,900,000] units (including up to [900,000] units included in the over-allotment option granted to the Underwriters (as defined below)) (each a Unit and together the Units ) with each Unit consisting of: one ordinary share of no par value in the Company, (each a Share and together the Shares ); one right to receive one tenth of one Share on the consummation of an initial business combination by the Company (each a Right and together the Rights ); and one warrant, exercisable on the later of the consummation of an initial business combination by the Company or 12 months from the date of the prospectus in respect of the Units, to purchase one half of one Share (each a Warrant and together the Warrants ) to the underwriters for whom EarlyBirdCapital, Inc. (the Representative ) is acting as representative (together, the Underwriters ); and (ii) all Shares, Rights and Warrants issued as part of the Units (which together constitute all of the ordinary shares or rights to receive or acquire the same in the Company being registered pursuant to the Registration Statement). This opinion is given in accordance with the terms of the legal matters section of the Registration Statement.
1 | Documents |
In preparing this opinion, we have reviewed copies of the following documents:
(a) | the Registration Statement; |
(b) | (i) | the constitutional documents and public records of the Company obtained from the Registry of Corporate Affairs in the British Virgin Islands on [ ● ]; |
(ii) | the public information revealed from a search of each of the Civil Index Book and the Commercial Book, each from the date of the Company’s incorporation, maintained by the British Virgin Islands’ High Court Registry on [● ]; |
(each of the searches in (b)(i) and (ii) together, the Public Records );
(iii) | a certificate issued by the directors of the Company dated [● ] ( Directors’ Certificate ); |
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(iv) | a registered agent’s certificate issued by the Company’s registered agent dated [ ● ] (the Registered Agent’s Certificate ); |
(v) | written resolutions of the directors of the Company containing resolutions of the directors of the Company dated [● ] approving, inter alia , the Registration Statement ( Directors’ Resolutions ); and |
(vi) | written resolutions of the shareholders' of the Company containing resolutions of the shareholders of the Company dated [● ] amending and restating the memorandum and articles of association of the Company (the Shareholders' Resolutions and together with the Directors' Resolutions, the Resolutions ). |
We have not made any enquiries or undertaken any searches concerning, and have not examined any other documents entered into by or affecting the Company or any other person, save for the examinations referred to in paragraph 1 above. In particular, but without limitation, we have not examined any documents referred to within the Registration Statement save as expressly referred to above and our opinion is limited accordingly.
2 | Assumptions |
This opinion is given only as to the circumstances existing on the date hereof and as to British Virgin Islands law in force on this date. We have relied on each of the Registered Agent's Certificate and the Directors’ Certificate without further enquiry and upon the following assumptions, which we have not independently verified:
(a) | all parties to the Registration Statement (other than the Company) have the capacity, power and authority to exercise their rights and perform their obligations under such Registration Statement; |
(b) | the Registration Statement has been or, as the case may be, will be duly authorised by or on behalf of all relevant parties (other than the Company); |
(c) | copies of documents or records provided to us are true copies of the originals which are authentic and complete; |
(d) | all signatures and seals on all documents are genuine and authentic and in particular that any signatures on the documents we have reviewed are the true signatures of the persons authorised to execute the same; |
(e) | the accuracy and completeness of the representations made by the directors of the Company in the Directors’ Certificate as at the date hereof; |
(f) | the Resolutions remain in full force and effect; |
(g) | the accuracy and completeness of the Registered Agent's Certificate as at the date hereof; and |
(h) | the information and documents disclosed by the searches of the Public Records was and is accurate, up-to-date and remains unchanged as at the date hereof and there is no information or document which has been delivered for registration by any party (other than the Company), or which is required by the laws of the British Virgin Islands to be delivered for registration by any party (other than the Company), which was not included and available for inspection in the Public Records; and |
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3 | Opinion |
Based upon the foregoing, and subject to the qualifications expressed below, we are of the opinion that:
(a) | The Company is a company duly incorporated with limited liability under the BVI Business Companies Act, 2004 and validly existing in good standing under the laws of the British Virgin Islands. It is a separate legal entity and is subject to suit in its own name. |
(b) | The Company has the capacity and power to exercise its rights and perform its obligations under the Registration Statement. |
(c) | The Shares to be offered and sold by the Company as contemplated by the Registration Statement have been duly authorised for issue and, when issued by the Company against payment in full of the consideration in accordance with the terms set out in the Registration Statement and the terms in the underwriting agreement referred to within the Registration Statement and duly registered in the Company’s register of members, will be validly issued, fully paid and non-assessable. |
(d) | The Shares to be issued pursuant to the Rights on the consummation of an initial business combination by the Company have been duly authorised for issue and, when issued by the Company in accordance with the terms set out in the Registration Statement and the terms of the Rights Agreement in respect of the Rights referred to within the Registration Statement and duly registered in the Company’s register of members, will be validly issued, fully paid and non-assessable. |
(e) | The performance of the Company's obligations under the Registration Statement do not and will not conflict with or result in any breach of: |
(i) | the Memorandum and Articles of Association of the Company; or |
(ii) | any law of the British Virgin Islands applicable to the Company. |
(f) | There were no actions pending against the Company based on our search of each of the Civil Index Book and the Commercial Book maintained by the British Virgin Islands High Court Registry. |
(g) | On the basis of our searches conducted at the Registry of Corporate Affairs and at the High Court Registry, no currently valid order or resolution for the winding-up of the Company and no current notice of appointment of a receiver in the British Virgin Islands over the Company, or any of its assets, appears on the records maintained in respect of the Company. It is a requirement under section 118 of the Insolvency Act 2003 that notice of appointment of a receiver be registered with the Registry of Corporate Affairs, however, it should be noted that failure to file a notice of appointment of a receiver does not invalidate the receivership but gives rise to penalties on the part of the receiver. |
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4 | Limitations |
We offer no opinion:
(a) | in relation to the laws of any jurisdiction other than the British Virgin Islands (and we have not made any investigation into such laws); |
(b) | in relation to any representation or warranty made or given by the Company in the Registration Statement; or |
(c) | as to the commerciality of the transactions envisaged in the Registration Statement or, save as expressly stated in this opinion, whether the Registration Statement and the transaction envisaged therein achieve the commercial, tax, legal, regulatory or other aims of the parties to the Registration Statement. |
5 | Governing Law and Reliance |
(a) | This opinion shall be governed by and construed in accordance with the laws of the British Virgin Islands and is limited to the matters expressly stated herein. This opinion is confined to and given on the basis of the laws and practice in the British Virgin Islands at the date hereof. |
(b) | We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the legal matters and taxation sections of the Registration Statement. In the giving of our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder. |
Yours faithfully
Ogier
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Very truly yours,
|
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/s/
|
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Ellenoff Grossman & Schole LLP
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Exhibit 10.2
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of [•], 2014 by and between DT Asia Investments Limited (the “Company”) and Continental Stock Transfer & Trust Company (“Trustee”).
WHEREAS, the Company’s registration statement on Form S-1, No. 333-197187 (“Registration Statement”) for its initial public offering of securities (“IPO”) has been declared effective as of the date hereof (“Effective Date”) by the Securities and Exchange Commission (capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Registration Statement); and
WHEREAS, EarlyBirdCapital, Inc. (“EBC”) is acting as the representative of the underwriters in the IPO; and
WHEREAS, simultaneously with the IPO, DeTiger Holdings Limited (the “Sponsor”) and EBC, and or their respective designees (collectively, the “Private Purchasers”) will be purchasing an aggregate of 320,000 units (“Initial Private Units”) from the Company for an aggregate purchase price of $3,200,000; and
WHEREAS, in the event EBC exercises its over-allotment option in full or in part, the Private Purchasers will purchase up to an aggregate of an additional 33,750 units (“Over-Allotment Private Units,” together with the Initial Private Units, the “Private Units”) for an aggregate purchase price of up to $337,500; and
WHEREAS, if the Company’s initial acquisition, share exchange, share reconstruction and amalgamation, purchase of all or substantially all of the assets of, or any other similar business combination with one or more businesses or entities (the “Business Combination”) is not consummated within the initial 18 month period following the closing of the IPO, the Sponsor of its affiliates may extend such period by two three-month periods, up to a maximum of 24 months in the aggregate, by depositing $150,000 (or $172,500 if the overallotment is exercised in full) into the Trust Account no later than the day prior to either the 18 month anniversary of the IPO or the 21 month anniversary of the IPO (each, an “Applicable Deadline”) for each three month extension; and
WHEREAS, as described in the Registration Statement, and in accordance with the Company’s Amended and Restated Memorandum and Articles of Association, $60,300,000 of the gross proceeds of the IPO and sale of the Private Units ($69,345,000 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, no par value per share (“Ordinary Shares”), issued in the IPO as hereinafter provided (the amounts to be delivered to the Trustee will be referred to herein as the “Property”; the shareholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Shareholders,” and the Public Shareholders and the Company will be referred to together as the “Beneficiaries”); and
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WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property;
IT IS AGREED:
1. Agreements and Covenants of Trustee . The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in a segregated trust account (“Trust Account”) established by the Trustee at JP Morgan Chase Bank, NA and at a brokerage institution selected by the Trustee that is satisfactory to the Company;
(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, invest and reinvest the Property (i) in United States government treasury bills, notes or bonds having a maturity of 180 days or less and/or (ii) in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended, and that invest solely in U.S. treasuries, as determined by the Company;
(d) Collect and receive, when due, all principal and income arising from the Property, which shall become part of the “Property,” as such term is used herein;
(e) Notify the Company and EBC 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 its tax returns;
(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 to do so;
(h) Render to the Company monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements of the Trust Account; and
(i) Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter (“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 of the Board and Secretary or Assistant Secretary, affirmed by counsel for the Company and, in the case of a Termination Letter in a form substantially similar to that attached hereto as Exhibit A, acknowledged and agreed to by EBC, 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 18-month anniversary of the closing of the IPO (“Closing”) or, the 21 month or 24-month anniversary of the Closing, if extended as described below, (“Last Date”), 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 Public Shareholders as of the Last Date.
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(j) Upon receipt of an extension letter (the “Extension Letter”) substantially similar to Exhibit C hereto, signed on behalf of the Company by an executive officer, and the dollar amount specified in the Extension Letter on or prior to an Applicable Deadline, follow the instructions contained in such Extension Letter. For the purposes of clarity, any transmission of such Extension Letter electronically, whether by facsimile, electronic mail (e-mail), PDF or otherwise, shall constitute an original of such Extension Letter hereunder.
2. Limited Distributions of Income from Trust Account .
(a) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D, the Trustee shall distribute to the Company the amount of interest income earned on the Trust Account requested by the Company to cover any income or other tax obligation owed by the Company.
(b) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit E, the Trustee shall distribute to the Company the amount of interest income earned on the Trust Account requested by the Company to cover expenses related to investigating and selecting a target business and other working capital requirements; provided, however, that the Company will not be allowed to withdraw interest income earned on the Trust A ccount unless there is an amount of interest income available in the Trust Account sufficient to pay the Company’s tax obligations on such interest income or otherwise then due at that time.
(c) The limited distributions referred to in Sections 2(a) and 2(b) above shall be made only from income collected on the Property. Except as provided in Section 2(a), and 2(b) above, no other distributions from the Trust Account shall be permitted except in accordance with Section 1(i) hereof.
(d) The Company shall provide EBC with a copy of any Termination Letters, Extension Letters and/or any other correspondence that it issues to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after such issuance.
3. 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 Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer, President or Chief Financial Officer. In addition, except with respect to its duties under paragraphs 1(i), 1(j), 2(a) and 2(b) 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) Subject to the provisions of Sections 5 and 7(g) of this Agreement, 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 claim, potential claim, 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, 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, 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 any fees owed to the Trustee shall be deducted by the Trustee from the disbursements made to the Company pursuant to Sections 1(i) solely in connection with the consummation of a Business Combination, or 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;
(d) In connection with any vote of the Company’s shareholders regarding a Business Combination, provide to the Trustee an affidavit or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating shareholder votes verifying the vote of the Company’s shareholders regarding such Business Combination; and
(e) In the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to Section 1(i), the Company agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement.
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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 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 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; and
(h) File local, state and/or Federal tax returns or information returns with any taxing authority on behalf of the Trust Account and payee statements with the Company documenting the taxes, if any, payable by the Company or the Trust Account, relating to the income earned on the Property.
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(i) Pay any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account or released to it under Section 2(a) hereof).
(j) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this agreement and that which is expressly set forth herein.
(k) Verify calculations, qualify or otherwise approve Company requests for distributions pursuant to Section 1(i), 2(a) or 2(b) above.
5. Trust Account Waiver . The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 3(b) or Section 3(c) hereof, the Trustee shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account
6. Termination . This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or 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; or
(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 3(b).
7. Miscellaneous .
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds transfers, the Trustee will rely upon all information supplied to it by the Company, including account names, account numbers and all other identifying information relating to a beneficiary, beneficiary’s bank or intermediary bank. The Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the wire.
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(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, applicable to contracts wholly performed within the borders of such states and without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. It may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument. The Company hereby appoints, without power of revocation, Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, New York 10105 Fax No.: (212) 370-7889 Attn: Stuart Neuhauser, Esq., as their respective agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of this Agreement. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Sections 1(i), 1(j), 2(a), 2(b) and 2(c) (which may not be modified, amended or deleted without the affirmative vote of at least 65% of the then outstanding Ordinary Shares attending and voting on such amendment at the relevant meeting ; provided that no such amendment will affect any Public Shareholder who has otherwise indicated his election to redeem his Ordinary Shares in connection with a shareholder vote sought to amend this Agreement to extend to the time he would be entitled to a return of his pro rata amount in the Trust Account), this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) 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 EBC. As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives the right to trial by jury. The Trustee may require from Company counsel an opinion as to the propriety of any proposed amendment.
(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough of Manhattan, 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:
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Fax No.: (212) 509-5150
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if to the Company, to:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Attn: Stephen N. Cannon, Chief Executive Officer
Fax No.: [•]
in either case with a copy to:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
Attn: Steven Levine, Chief Executive Officer
Fax No.: (212) 661-4936
(f) This Agreement may not be assigned by the Trustee without the prior consent of the Company.
(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 the event that the Trustee has a claim against the Company under this Agreement, the Trustee will pursue such claim solely against the Company and not against the Property held in the Trust Account.
(h) Each of the Company and the Trustee hereby acknowledge that EBC is a third party beneficiary of this Agreement.
[Signature Page Follows]
8 |
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: | ||
Name: Frank Di Paolo | ||
Title: Trust Officer | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: | ||
Title: | ||
9 |
SCHEDULE A
Fee Item | Time and method of payment | Amount | ||
Initial acceptance fee | Initial closing of IPO by wire transfer | [$2,000] | ||
Annual fee | 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 | $10,000 | ||
Transaction processing fee for disbursements to Company under Section 2 | Deduction by Trustee from accumulated income following disbursement made to Company under Section 2 | $250 | ||
Paying Agent services as required pursuant to section 1(i) | Billed to Company upon delivery of service pursuant to section 1(i) |
Prevailing rates
|
10 |
EXHIBIT A
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. - Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between DT Asia Investments Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [•], 2014 (“Trust Agreement”), this is to advise you that the Company has entered into an agreement (“Business Agreement”) with __________________ (“Target Business”) to consummate a business combination with Target Business (“Business Combination”) on or about [insert date] . The Company shall notify you at least 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 set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments on __________ and to transfer the proceeds to the above-referenced account at JP Morgan Chase Bank 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. It is acknowledged and agreed that while the funds are on deposit in the trust account awaiting distribution, the Company will not earn any interest or dividends.
On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated and (ii) the Company shall deliver to you (a) [an affidavit] [a certificate] of __________________, which verifies the vote of the Company’s shareholders in connection with the Business Combination if a vote is held and (b) joint written instructions from it and EarlyBirdCapital, Inc. 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 distributed after the Consummation Date to the Company. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof, the Trust Agreement shall be terminated.
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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 by the Trustee of written instructions 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, | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Stephen N. Cannon , | ||
Chief Executivel Officer |
AGREED TO AND
ACKNOWLEDGED BY |
||
EARLYBIRDCAPITAL, INC. |
By: |
12 |
EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [insert no.] - Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between DT Asia Investments Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [•] , 2014 (“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 Amended and Restated Memorandum and Articles of Association, as described in the Company’s prospectus relating to its IPO. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all the Trust Account investments on ______________ and to transfer the total proceeds to the Trust Checking Account at JP Morgan Chase Bank, NA to await distribution to the Public Shareholders. The Company has selected ____________, 20__ as the record date for the purpose of determining the Public Shareholders entitled to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation proceeds while on deposit in the Trust Checking Account. You agree to be the Paying Agent of record and in your separate capacity as Paying Agent, to distribute said funds directly to the Public Shareholders in accordance with the terms of the Trust Agreement and the Amended and Restated Memorandum and Articles of Association of the Company. Upon the distribution of all the funds in the Trust Account, your obligations under the Trust Agreement shall be terminated.
Very truly yours, | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Stephen N. Cannon,
|
||
Chief Executivel Officer |
cc: EarlyBirdCapital, Inc.
13 |
EXHIBIT C
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [ ] - Extension Letter
Gentlemen:
Pursuant to Section 1(j) of the Investment Management Trust Agreement between DT Asia Investments Limited (“ Company ”) and Continental Stock Transfer & Trust Company, dated as of [ ], 2014 (“ Trust Agreement ”), this is to advise you that the Company is extending the time available in order to consummate a Business Combination by an additional three (3) months, from _______ to _________ (the “ Extension ”).
This Extension Letter shall serve as the notice required with respect to Extension prior to the Applicable Deadline. Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to deposit $[ ] which will be wired to you into the Trust Account investments upon receipt.
This is the [first][second] of up to two Extension Letters permitted under the Trust Agreement.
Very truly yours, | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Stephen N. Cannon, | ||
Chief Executivel Officer |
cc: EarlyBirdCapital, Inc.
14 |
EXHIBIT D
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [insert no.]
Gentlemen:
Pursuant to paragraph 2(a) of the Investment Management Trust Agreement between DT Asia Investments Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [•] (“Trust Agreement”), the Company hereby requests that you deliver to the Company $_______ of the interest income earned on the Property as of the date hereof. The Company needs such funds to pay for its tax obligations. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION] |
DT ASIA INVESTMENTS LIMITED | ||
By : | ||
Stephen N. Cannon,
|
||
Chief Executivel Officer |
cc: EarlyBirdCapital, Inc.
15 |
EXHIBIT E
[Letterhead of Company]
[Insert date]
Continental Stock Transfer s
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [insert no.]
Gentlemen:
Pursuant to paragraph 2(b) of the Investment Management Trust Agreement between DT Asia Investments Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [•] , 2014 (“Trust Agreement”), the Company hereby requests that you deliver to the Company $_______ of the interest income earned on the Property as of the date hereof. The Company needs such funds to cover its expenses relating to investigating and selecting a target business and other working capital requirements. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION] |
Very truly yours, |
||
DT ASIA INVESTMENTS LIMITED | ||
By : | ||
Stephen N. Cannon,
|
||
Chief Executivel Officer |
cc: EarlyBirdCapital, Inc.
16
Exhibit 10.3
_______________, 2014
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
DeTiger Holdings Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Ladies and Gentlemen:
This letter will confirm our agreement that, commencing on the effective date (the “ Effective Date ”) of the registration statement (the “ Registration Statement ”) for the initial public offering (the “ IPO ”) of the securities of DT Asia Investments Limited (the “ Company ”) and continuing until the earlier of (i) the consummation by the Company of an initial business combination or (ii) the Company’s liquidation (in each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “ Termination Date ”), DeTiger Holdings Limited (“DeTiger Holdings”) shall make available to the Company certain office space and administrative and support services as may be required by the Company from time to time, situated at Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong (or any successor location). In exchange therefore, the Company shall pay DeTiger Holdings the sum of $10,000 per month on the Effective Date and continuing monthly thereafter until the Termination Date. DeTiger Holdings hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies that may be set aside in a trust account (the “ Trust Account ”) that may be established upon the consummation of the IPO (the “ Claim ”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever.
Very truly yours, | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: | ||
Title: |
AGREED TO AND ACCEPTED BY: | ||
DETIGER HOLDINGS LIMITED | ||
By: | ||
Name: | ||
Title: |
Exhibit 10.4
SHARE ESCROW AGREEMENT
SHARE ESCROW AGREEMENT, dated as of [•], 2014 (“Agreement”), by and among DT ASIA INVESTMENTS LIMITED, a British Virgin Islands Company (“Company”), detiger holdings limited (“DHL”), emily chui-hung tong, stephen n. cannon, haibin wang, foelan wong, hai wang and jason kon man wong (collectively “Initial Shareholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (“Escrow Agent”).
WHEREAS, the Company has entered into an Underwriting Agreement, dated as of [•], 2014 (“Underwriting Agreement”), with EarlyBirdCapital, Inc. (“EBC”) acting as representative of the several underwriters (collectively, the “Underwriters”), pursuant to which, among other matters, the Underwriters have agreed to purchase 6,000,000 units (“Units”) of the Company, plus an additional 900,000 Units if the Underwriters exercise their over-allotment option in full. Each Unit consists of one ordinary share of the Company, no par value per share (“Ordinary Share”), one warrant (the “Warrant”) to purchase one-half of one Ordinary Share and one right (“Right”) to receive one-tenth of one Ordinary Share upon the Company’s initial business combination (as described in the Registration Statement, hereinafter a “Business Combination”), all as more fully described in the Company’s final Prospectus, dated [•], 2014 (“Prospectus”), comprising part of the Company’s Registration Statement on Form S-1 (File No. 333-197187) under the Securities Act of 1933, as amended (“Registration Statement”), declared effective on [•], 2014 (“Effective Date”).
WHEREAS, the Initial Shareholders have agreed as a condition of the sale of the Units to deposit their Ordinary Shares of the Company, as set forth opposite their respective names in Exhibit A attached hereto (collectively “Escrow Shares”), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Shareholders desire that the Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent . The Company and the Initial Shareholders hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Shares . On the Effective Date, certificates representing each Initial Shareholder’s respective Escrow Shares (and any applicable share power) shall be placed in escrow, to be held and disbursed subject to the terms and conditions of this Agreement. Each Initial Shareholder acknowledges that the certificate representing such Initial Shareholder’s Escrow Shares will be legended to reflect the deposit of such Escrow Shares under this Agreement.
3. Disbursement of the Escrow Shares .
3.1 The Escrow Agent shall hold the Escrow Shares during the period (the “Escrow Period”) commencing on the date hereof and (i) for 50% of the Escrow Shares, ending on the earlier of (x) one year after the date of the consummation of the Company’s initial Business Combination and (y) the date on which the closing sale price of the Company’s Ordinary Shares equals or exceeds $12.50 per share (as adjusted for share splits, share dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Company’s initial Business Combination and (ii) for the remaining 50% of the Escrow Shares, ending one year after the date of the consummation of an initial Business Combination; provided, however, that if, subsequent to the Company’s consummation of an initial Business Combination, the Company (or the surviving entity) subsequently consummates a liquidation, merger, share exchange or other similar transaction which results in all of the shareholders of such entity having the right to exchange their Ordinary Shares for cash, securities or other property, then the Escrow Agent will, upon receipt of a notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated, release the Escrow Shares then held by it to the Initial Shareholders. The Company shall promptly provide notice of the consummation of an initial Business Combination to the Escrow Agent. Upon completion of the Escrow Period, the Escrow Agent shall disburse such amount of each Initial Shareholder’s Escrow Shares (and any applicable share power) to such Initial Shareholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Shares. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares in accordance with this Section 3.
3.2 Notwithstanding Section 3.1, if the Underwriters do not exercise their over-allotment option to purchase an additional 900,000 Units of the Company in full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), DHL agrees that the Escrow Agent shall return to the Company for cancellation, at no cost, a number of Escrow Shares held by DHL determined by multiplying (a) 225,000 by (b) a fraction, (i) the numerator of which is 900,000 minus the number of Ordinary Shares purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 900,000. The Company shall promptly provide notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of Units, if any, purchased by the Underwriters in connection with their exercise thereof.
4. Rights of Initial Shareholders in Escrow Shares .
4.1 Voting Rights as a Shareholder . Subject to the terms of the Insider Letters described in Section 4.4 hereof and except as herein provided, the Initial Shareholders shall retain all of their rights as shareholders of the Company during the Escrow Period, including, without limitation, the right to vote such shares.
2 |
4.2 Dividends and Other Distributions in Respect of the Escrow Shares . During the Escrow Period, all dividends payable in cash with respect to the Escrow Shares shall be paid to the Initial Shareholders, but all dividends payable in shares or other non-cash property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends distributed thereon, if any.
4.3 Restrictions on Transfer . During the Escrow Period, the only permitted transfers of the Escrow Shares will be (i) to any persons (including their affiliates and shareholders) participating in the private placement of the private units, officer, director, securityholder, employee, member or affiliate of DHL, (ii) amongst the Initial Holders or to the Company’s officers, directors and employees, (iii) if the Initial Shareholder is an entity, as a distribution to partners, members or shareholders of the Initial Shareholder upon the liquidation and dissolution of the Initial Shareholder, (iv) by bona fide gift to a member of the Initial Shareholder’s immediate family or to a trust, the beneficiary of which is the Initial Shareholder or a member of the Initial Shareholder’s immediate family for estate planning purposes, (v) by virtue of the laws of descent and distribution upon death of the Initial Holder, (vi) pursuant to a qualified domestic relations order, (vii) by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities, (viii) by private sales at prices no greater than the price at which the Escrow Shares were originally purchased or (ix) to the Company for cancellation as set forth in Section 3.2 hereof or in connection with the consummation of a Business Combination, in each case, except for clause (ix), on the condition that such transfers may be implemented only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement and of the Insider Letter (as defined below) signed by the Initial Shareholder transferring the Escrow Shares.
4.4 Insider Letters . Each of the Initial Shareholders has executed a letter agreement with EBC and the Company, dated as indicated on Exhibit A hereto, and the form of which is filed as an exhibit to the Registration Statement (“Insider Letter”), respecting the rights and obligations of such Initial Shareholder in certain events, including but not limited to the liquidation of the Company.
5. Concerning the Escrow Agent .
5.1 Good Faith Reliance . The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and 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 Escrow Agent), 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 Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
3 |
5.2 Indemnification . The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Shares or it may deposit the Escrow Shares with the clerk of any appropriate court or it may retain the Escrow Shares pending receipt of a final, non appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Shares are to be disbursed and delivered. The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 Compensation . The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
5.4 Further Assurances . From time to time on and after the date hereof, the Company and the Initial Shareholders shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.5 Resignation . The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, the Escrow Shares held hereunder. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Shares with any court it reasonably deems appropriate.
5.6 Discharge of Escrow Agent . The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.
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5.7 Liability . Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
5.8 Waiver . The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Escrow Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
6. Miscellaneous .
6.1 Governing Law; Jurisdiction . In connection with Section 5-1401 of the General Obligations Law of the State of New York, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this Agreement shall be resolved through final and biding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators. The Company hereby appoints, without power of revocation, Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, New York, NY 10105 Fax No.: (212) 370-7889 Attn: Stuart Neuhauser, Esq., as their respective agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of this Agreement. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
6.2 Third Party Beneficiaries . Each of the Initial Shareholders hereby acknowledges that the Underwriters are third party beneficiaries of this Agreement and this Agreement may not be modified or changed without the prior written consent of EBC.
6.3 Entire Agreement . This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
5 |
6.4 Headings . The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.5 Binding Effect . This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
6.6 Notices . Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid, and shall be deemed given when so delivered personally or, if mailed, two days after the date of mailing, as follows:
If to the Company, to:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Attn: Stephen N. Cannon, Chief Executive Officer
If to a Shareholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Chairman
A copy of any notice sent hereunder shall be sent to:
EarlyBirdCapital, Inc.
275 Madison Avenue, 27th Floor
New York, New York 10016
Attn: David M. Nussbaum, Chairman
6 |
and:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas,
New York, NY10105
Attn: Stuart Neuhauser, Esq.
and:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.
6.7 Liquidation of the Company . The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company in the event that the Company fails to consummate a Business Combination within the time period specified in the Prospectus.
[Signature Page Follows]
7 |
WITNESS the execution of this Agreement as of the date first above written.
COMPANY: | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: | Stephen N. Cannon | |
Title: | Chief Executive Officer | |
INITIAL SHAREHOLDERS: | ||
DeTiger Holdings Limited | ||
By: | ||
Name: | ||
Title: | ||
Emily Chui-Hung Tong | ||
Stephen N. Cannon | ||
Haibin Wang | ||
Hai Wang | ||
Foelan Wong | ||
Jason Kon Man Wong | ||
ESCROW AGENT: | ||
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY |
||
By: | ||
Name: | ||
Title: |
8 |
EXHIBIT A
Name and Address of Initial Shareholder |
Number of Shares |
Share
Certificate
|
Date of Insider Letter |
|||
Emily Chui-Hung Tong | 50,000 | 1 | [•], 2014 | |||
Stephen N. Cannon | 50,000 | 2 | [•], 2014 | |||
DeTiger Holdings Limited | 1,525,000 | 3 | [•], 2014 | |||
Haibin Wang | 25,000 | [•] | [•], 2014 | |||
Hai Wang | 25,000 | [•] | [•], 2014 | |||
Foelan Wong | 25,000 | [•] | [•], 2014 | |||
Jason Kon Man Wong |
25,000 | [•] | [•], 2014 |
9
Exhibit 10.5
DT Asia Investments Limited
100 Park Avenue, Suite 1600
New York, NY 10017
June 5, 2014
Emily Chui-Hung Tong
RE: Securities Purchase Agreement
Ladies and Gentlemen:
We are pleased to accept the offer Emily Chui-Hung Tong (the “ Subscriber ”) has made to purchase 50,000 ordinary shares (the “ Shares ”) of no par value per share (the “ Ordinary Shares ”), of DT Asia Investments Limited, a British Virgin Islands company (the “ Company ”). The terms on which the Company is willing to sell the Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares, are as follows:
1. Purchase of Shares . For the aggregate sum of $725 (the “ Purchase Price ”), which the Company acknowledges receiving in cash, the Company hereby sells and issues to the Subscriber, and the Subscriber hereby purchases from the Company the Shares, for a purchase price of approximately $0.0145 per Share, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company is delivering to the Subscriber certificate(s) registered in the Subscriber’s name representing the Shares, receipt of which the Subscriber hereby acknowledges.
2. Representations, Warranties and Agreements .
2.1 Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1. No Government Recommendation or Approval . The Subscriber understands that no United States federal or state agency or similar agency of any other country has passed upon or made any recommendation or endorsement of the offering of the Shares.
2.1.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) any agreement, indenture or instrument to which the Subscriber is a party or (ii) any law, statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.
2.1.3. Organization and Authority . Upon execution and delivery by the Subscriber, this Agreement is a legal, valid and binding agreement of such Subscriber, enforceable against such Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
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2.1.4. Experience, Financial Capability and Suitability . Each Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of his or her investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The Subscriber has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that he or she is capable of evaluating the merits and risks of his or her investment in the Company and has the capacity to protect his or her own interests. Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective registration statement under the Securities Act or (ii) an exemption from registration available with respect to such sale. The Subscriber is able to bear the economic risks of an investment in the Shares and to afford a complete loss of Subscriber’s investment in the Shares.
2.1.5. Access to Information; Independent Investigation . Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscriber’s own knowledge and understanding of the Company and its business based upon Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
2.1.6. Regulation D Offering . The Subscriber represents that he or she is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “ Securities Act ”) and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law.
2.1.7. Investment Purposes . The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof and the Subscriber has no present arrangement to sell the interest in the Shares to or through any person or entity. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.
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2.1.8. Restrictions on Transfer; Shell Company . The Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Subscriber understands the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and Subscriber understands that the certificates representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. The Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
2.1.9. No Governmental Consents . No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of Subscriber in connection with the transactions contemplated by this Agreement.
2.2 Company’s Representations, Warranties and Agreements . To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1. Organization and Corporate Power . The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement.
2.2.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the memorandum and articles of association of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject.
2.2.3. Title to Securities . Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Shares will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder and under the other agreements contemplated hereby, (b) transfer restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the action of the Subscriber.
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3. Waiver of Liquidation Distributions; Redemption Rights . In connection with the Shares purchased pursuant to this Agreement and any other Company securities purchased on a private placement basis, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the Trust Account (as such term is defined in the Investment Management Trust Agreement to be entered by and between the Company and the trustee thereunder), in the event of a liquidation of the Company upon the Company’s failure to timely complete a Business Combination. For purposes of clarity, in the event any Subscriber purchases Ordinary Shares in the IPO or in the aftermarket, any additional shares so purchased shall be eligible to receive their pro rata portion of any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any Shares, or any Ordinary Shares purchased in the IPO or in the aftermarket, for funds held in the Trust Account upon the successful completion of a Business Combination.
4. Restrictions on Transfer.
4.1. Securities Law Restrictions . In addition to any restrictions to be contained in the Letter Agreement (as defined in Section 4.4 below), the Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company shall have received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
4.2. Restrictive Legends . All certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”
4.3. Additional Shares or Substituted Securities . In the event of the declaration of a stock dividend, the declaration of an extraordinary dividend payable in a form other than stock, a spin-off, a stock split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding capital stock without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 4 or into which such Shares thereby become convertible shall immediately be subject to this Section 4. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Shares subject to this Section 4.
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4.4. Lock-up . The Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “ Lock-up ”) contained in a Letter Agreement between the Subscriber and the Company, to be entered into prior to the date of the preliminary prospectus in connection with the IPO (the “ Letter Agreement ”). Pursuant to the Letter Agreement, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of 50% of his or her respective Shares until the earlier of one year after the date of the consummation of the Company’s initial business combination (the “ Consummation Date ”) and the date on which the closing price of the Ordinary Shares exceeds $12.50 per share for any 20 trading days within a 30-trading day period following the Consummation Date (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations). In addition, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of the remaining 50% of the Shares until one year after the Consummation Date. Notwithstanding the foregoing, the aforesaid restrictions shall lapse if, subsequent to the Consummation Date, the Company consummates a subsequent liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property.
4.5. Registration Rights . The Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after they are registered pursuant to a Registration Rights Agreement to be entered into with the Company prior to the closing of the IPO (“ Registration Rights Agreement ”). The Subscriber is entitled to make such number of demands that the Company registers the Shares pursuant to the terms and restrictions as set forth in the Registration Rights Agreement.
5. Other Agreements .
5.1. Further Assurances . The Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
5.2. No Obligation as to Employment . The Company is not by reason of this Agreement obligated to employ, or continue to employ, the Subscriber in any capacity.
5.3. Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth on the first page of this Agreement or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by certified mail, on the (5 th ) business day following the day such mailing is made.
5.4. Entire Agreement . This Agreement, together with the Letter Agreement, substantially in the form to be filed as an exhibit to the Company’s registration statement on Form S-1, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
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5.5. Modifications and Amendments . The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.
5.6. Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
5.7. Assignment . The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.
5.8. Benefit . All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.
5.9. Governing Law . This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the British Virgin Islands for agreements made and to be wholly performed within such country.
5.10. Severability . In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
5.11. No Waiver of Rights, Powers and Remedies . No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
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5.12. Survival of Representations and Warranties . All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
5.13. No Broker or Finder . Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
5.14. Headings and Captions . The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
5.15. Counterparts . This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
6. Voting and Tender of Shares . The Subscriber agrees to vote the Shares as well as any Ordinary Shares acquired in the IPO or the aftermarket in favor of a Business Combination that the Company negotiates and presents for approval to the Company’s shareholders and shall not seek redemption with respect to the Shares. Additionally, the Subscriber agrees not to tender any Share in connection with a tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.
7. Indemnification . Each party shall indemnify the other and the underwriter of the IPO against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.
[Signature Page Follows]
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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this agreement and return it to us.
Very truly yours, | |||
DT ASIA INVESTMENTS LIMITED | |||
By: | /s/ Winnie Lai Ling Ng | ||
Name: | Winnie Lai Ling Ng | ||
Title: | Sole Director | ||
Accepted and agreed this | |||
June 5, 2014 | |||
/s/ Emily Chui-Hung Tong | |||
Emily Chui-Hung Tong |
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Exhibit 10.6
DT Asia Investments Limited
100 Park Avenue, Suite 1600
New York, NY 10017
June 5, 2014
Stephen N. Cannon
RE: Securities Purchase Agreement
Ladies and Gentlemen:
We are pleased to accept the offer Stephen N. Cannon (the “ Subscriber ”) has made to purchase 50,000 ordinary shares (the “ Shares ”) of no par value per share (the “ Ordinary Shares ”), of DT Asia Investments Limited, a British Virgin Islands company (the “ Company ”). The terms on which the Company is willing to sell the Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares, are as follows:
1. Purchase of Shares . For the aggregate sum of $725 (the “ Purchase Price ”), which the Company acknowledges receiving in cash, the Company hereby sells and issues to the Subscriber, and the Subscriber hereby purchases from the Company the Shares, for a purchase price of approximately $0.0145 per Share, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company is delivering to the Subscriber certificate(s) registered in the Subscriber’s name representing the Shares, receipt of which the Subscriber hereby acknowledges.
2. Representations, Warranties and Agreements .
2.1 Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1. No Government Recommendation or Approval . The Subscriber understands that no United States federal or state agency or similar agency of any other country has passed upon or made any recommendation or endorsement of the offering of the Shares.
2.1.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) any agreement, indenture or instrument to which the Subscriber is a party or (ii) any law, statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.
2.1.3. Organization and Authority . Upon execution and delivery by the Subscriber, this Agreement is a legal, valid and binding agreement of such Subscriber, enforceable against such Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
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2.1.4. Experience, Financial Capability and Suitability . Each Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of his or her investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The Subscriber has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that he or she is capable of evaluating the merits and risks of his or her investment in the Company and has the capacity to protect his or her own interests. Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective registration statement under the Securities Act or (ii) an exemption from registration available with respect to such sale. The Subscriber is able to bear the economic risks of an investment in the Shares and to afford a complete loss of Subscriber’s investment in the Shares.
2.1.5. Access to Information; Independent Investigation . Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscriber’s own knowledge and understanding of the Company and its business based upon Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
2.1.6. Regulation D Offering . The Subscriber represents that he or she is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “ Securities Act ”) and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law.
2.1.7. Investment Purposes . The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof and the Subscriber has no present arrangement to sell the interest in the Shares to or through any person or entity. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.
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2.1.8. Restrictions on Transfer; Shell Company . The Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Subscriber understands the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and Subscriber understands that the certificates representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. The Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
2.1.9. No Governmental Consents . No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of Subscriber in connection with the transactions contemplated by this Agreement.
2.2 Company’s Representations, Warranties and Agreements . To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1. Organization and Corporate Power . The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement.
2.2.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the memorandum and articles of association of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject.
2.2.3. Title to Securities . Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Shares will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder and under the other agreements contemplated hereby, (b) transfer restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the action of the Subscriber.
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3. Waiver of Liquidation Distributions; Redemption Rights . In connection with the Shares purchased pursuant to this Agreement and any other Company securities purchased on a private placement basis, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the Trust Account (as such term is defined in the Investment Management Trust Agreement to be entered by and between the Company and the trustee thereunder), in the event of a liquidation of the Company upon the Company’s failure to timely complete a Business Combination. For purposes of clarity, in the event any Subscriber purchases Ordinary Shares in the IPO or in the aftermarket, any additional shares so purchased shall be eligible to receive their pro rata portion of any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any Shares, or any Ordinary Shares purchased in the IPO or in the aftermarket, for funds held in the Trust Account upon the successful completion of a Business Combination.
4. Restrictions on Transfer.
4.1. Securities Law Restrictions . In addition to any restrictions to be contained in the Letter Agreement (as defined in Section 4.4 below), the Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company shall have received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
4.2. Restrictive Legends . All certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”
4.3. Additional Shares or Substituted Securities . In the event of the declaration of a stock dividend, the declaration of an extraordinary dividend payable in a form other than stock, a spin-off, a stock split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding capital stock without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 4 or into which such Shares thereby become convertible shall immediately be subject to this Section 4. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Shares subject to this Section 4.
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4.4. Lock-up . The Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “ Lock-up ”) contained in a Letter Agreement between the Subscriber and the Company, to be entered into prior to the date of the preliminary prospectus in connection with the IPO (the “ Letter Agreement ”). Pursuant to the Letter Agreement, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of 50% of his or her respective Shares until the earlier of one year after the date of the consummation of the Company’s initial business combination (the “ Consummation Date ”) and the date on which the closing price of the Ordinary Shares exceeds $12.50 per share for any 20 trading days within a 30-trading day period following the Consummation Date (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations). In addition, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of the remaining 50% of the Shares until one year after the Consummation Date. Notwithstanding the foregoing, the aforesaid restrictions shall lapse if, subsequent to the Consummation Date, the Company consummates a subsequent liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property.
4.5. Registration Rights . The Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after they are registered pursuant to a Registration Rights Agreement to be entered into with the Company prior to the closing of the IPO (“ Registration Rights Agreement ”). The Subscriber is entitled to make such number of demands that the Company registers the Shares pursuant to the terms and restrictions as set forth in the Registration Rights Agreement.
5. Other Agreements .
5.1. Further Assurances . The Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
5.2. No Obligation as to Employment . The Company is not by reason of this Agreement obligated to employ, or continue to employ, the Subscriber in any capacity.
5.3. Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth on the first page of this Agreement or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by certified mail, on the (5 th ) business day following the day such mailing is made.
5.4. Entire Agreement . This Agreement, together with the Letter Agreement, substantially in the form to be filed as an exhibit to the Company’s registration statement on Form S-1, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
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5.5. Modifications and Amendments . The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.
5.6. Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
5.7. Assignment . The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.
5.8. Benefit . All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.
5.9. Governing Law . This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the British Virgin Islands for agreements made and to be wholly performed within such country.
5.10. Severability . In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
5.11. No Waiver of Rights, Powers and Remedies . No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
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5.12. Survival of Representations and Warranties . All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
5.13. No Broker or Finder . Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
5.14. Headings and Captions . The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
5.15. Counterparts . This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
6. Voting and Tender of Shares . The Subscriber agrees to vote the Shares as well as any Ordinary Shares acquired in the IPO or the aftermarket in favor of a Business Combination that the Company negotiates and presents for approval to the Company’s shareholders and shall not seek redemption with respect to the Shares. Additionally, the Subscriber agrees not to tender any Share in connection with a tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.
7. Indemnification . Each party shall indemnify the other and the underwriter of the IPO against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.
[Signature Page Follows]
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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this agreement and return it to us.
Very truly yours, | |||
DT ASIA INVESTMENTS LIMITED | |||
By: | /s/ Winnie Lai Ling Ng | ||
Name: | Winnie Lai Ling Ng | ||
Title: | Sole Director | ||
Accepted and agreed this | |||
June 5, 2014 | |||
/s/ Stephen N. Cannon | |||
Stephen N. Cannon |
8
Exhibit 10.7
DT Asia Investments Limited
100 Park Avenue, 16 th Floor
New York, NY 10017
June 8, 2014
DeTiger Holdings Limited
RE: Securities Purchase Agreement
Ladies and Gentlemen:
We are pleased to accept the offer you (the “ Subscriber ”) have made to purchase an aggregate of 1,625,000 ordinary shares (the “ Shares ”) of no par value per share (the “ Ordinary Shares ”), up to 225,000 of which Shares are subject to complete or partial forfeiture (the “ forfeiture ”) by you if the underwriters of the initial public offering (“ IPO ”) of DT Asia Investments Limited, a British Virgin Islands company (the “ Company ”) do not fully exercise their over-allotment option (the “ Over-allotment Option ”). The terms on which the Company is willing to sell the Shares to the Subscriber, and the Company and the Subscriber’ agreements regarding such Shares, are as follows:
1. Purchase of Shares . For the aggregate sum of $23,550 (the “ Purchase Price ”), which the Company acknowledges receiving in cash, the Company hereby sells and issues to the Subscriber, and the Subscriber hereby purchases from the Company 1,625,000 Ordinary Shares, for a purchase price of approximately $0.0145 per Share, subject to forfeiture by the Subscriber, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company is delivering to the Subscriber certificate(s) registered in the Subscriber’s names representing the Shares, receipt of which the Subscriber hereby acknowledges.
2. Representations, Warranties and Agreements .
2.1 Subscriber’s Representations, Warranties and Agreements . To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1. No Government Recommendation or Approval . The Subscriber understands that no United States federal or state agency or similar agency of any other country has passed upon or made any recommendation or endorsement of the offering of the Shares.
2.1.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Subscriber’s articles of association, (ii) any agreement, indenture or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.
2.1.3. Organization and Authority . The Subscriber is a business company duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
2.1.4 Experience, Financial Capability and Suitability . The Subscriber is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks of this investment and to make an informed decision relating thereto. The Subscriber is aware its investment in the Company is a speculative investment that has limited liquidity, because there may never be an established market for the Company’s securities. The Subscriber has the financial capability for making the investment and the investment is a suitable one for the Subscriber. The Subscriber can, without impairing its financial condition, hold the Shares for an indefinite period of time and can afford a complete loss of the investment. The Subscriber acknowledges that the Company has urged the Subscriber to seek independent advice from professional advisors relating to the suitability of an investment in the Company and in connection with this Agreement, and that the Subscriber has sought and received such independent professional advice with respect to such investment and this Agreement or, after careful consideration, the Subscriber has determined to waive its right to seek and/or receive such independent professional advice.
2.1.5. Access to Information . Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained.
2.1.6. Private Offering . The Subscriber represents that it is (a) an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “ Securities Act ”) or (b) not a “U.S. Person” as defined in Rule 902 of Regulation S (“ Regulation S ”) under the Securities Act. Subscriber acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “Accredited Investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law or to a non-U.S. Person under Regulation S. Accordingly, the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and therefore may not be offered, pledged or sold by Subscriber, directly or indirectly, in the United States without registration under United States federal and state securities laws or an exemption therefrom and Subscriber understands the certificates representing the Shares will contain a legend in respect of such restrictions. The Subscriber did not decide to enter into the Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act or as a result of any “directed selling efforts” within the meaning of Rule 902 under Regulation S.
2.1.7 Investment Purposes . The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’ own account and not for the account or benefit of any U.S. Person, and not with a view towards the distribution thereof and Subscriber has no present arrangement to sell the Shares to or through any person or entity. Subscriber shall not engage in hedging transactions with regard to the Shares unless in compliance with the Securities Act.
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2.1.8. Restrictions on Transfer . The Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act. The Shares have not been registered under the Securities Act, and, if in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only (A) in accordance with the provisions of Regulation S (Rule 901 through 905), (B) pursuant to a registration under the Securities Act, or (C) pursuant to an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. Subscriber further acknowledges that because the Company is a shell company and Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following the consummation of a business combination despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
2.2 Company’s Representations, Warranties and Agreements . To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1 Organization and Corporate Power . The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement.
2.2.2. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the memorandum and articles of association of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject.
2.2.3. Title to Securities . Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Shares will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder and under the other agreements contemplated hereby, (b) transfer restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the actions of the Subscriber.
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3. Forfeiture of Shares .
3.1. Partial or No Exercise of the Over-allotment Option . In the event the Over-allotment Option is not exercised in full, the Subscriber shall forfeit any and all rights to up to 225,000 Shares (based upon the percentage of the Over-allotment Option not exercised) such that immediately following such forfeiture, the Subscriber and all other initial shareholders prior to the IPO will own an aggregate number of Ordinary Shares (not including ordinary shares issuable upon exercise of any warrants or any shares purchased by Subscribers in the Company’s IPO or in the aftermarket) equal to 20% of the issued and outstanding Ordinary Shares of the Company immediately following the IPO.
3.2. Termination of Rights as Shareholder . If any of the Shares are forfeited by the Subscriber in accordance with this Section 3, then after such time, the Subscriber (or successor in interest), shall no longer have any rights as a holder of such Shares, and the Company shall take such action as is appropriate to cancel such Shares which may include by way of the compulsory redemption and cancellation of such Shares for nil consideration. In addition, the Subscriber hereby irrevocably grants the Company a limited power of attorney for the purpose of effectuating the foregoing and agrees to take any and all action reasonably requested by the Company necessary to effect any adjustment in this Section 3 (including any such redemption as is referred to herein above).
4. Waiver of Liquidation Distributions; Redemption Rights . In connection with the Shares purchased pursuant to this Agreement and any other Company securities purchased on a private placement basis, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the Trust Account (as such term is defined in the Investment Management Trust Agreement to be entered by and between the Company and the trustee thereunder), in the event of a liquidation of the Company upon the Company’s failure to timely complete a business combination. For purposes of clarity, in the event any Subscriber purchases Ordinary Shares in the IPO or in the aftermarket, any additional shares so purchased shall be eligible to receive their pro rata portion of any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any Shares, or any Ordinary Shares purchased in the IPO or in the aftermarket, for funds held in the Trust Account upon the successful completion of a business combination.
5. Restrictions on Transfer .
5.1. Securities Law Restrictions . In addition to any restrictions to be contained in the Letter Agreement (as defined in Section 5.5 below), the Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company shall have received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
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5.2 Restrictive Legends . All certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THESE SECURITIES (i) HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE RESALE LIMITATIONS SET FORTH IN RULE 905 OF REGULATIONS S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LETTER AGREEMENT AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LETTER AGREEMENT, EXCEPT IN ACCORDANCE WITH THE TERMS THEREOF.”
5.3. Additional Shares or Substituted Securities . In the event of the declaration of a stock dividend, the declaration of an extraordinary dividend payable in a form other than stock, a spin-off, a stock split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding capital stock without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Shares subject to this Section 5 and Section 3.
5.4 Lock-up . The Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “ Lock-up ”) contained in a Letter Agreement, to be entered into prior to the date of the preliminary prospectus in connection with the IPO between the Subscriber and the Company (the “ Letter Agreement ”). Pursuant to the Letter Agreement, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of 50% of his or her respective Shares until the earlier of one year after the date of the consummation of the Company’s initial business combination (the “ Consummation Date ”) and the date on which the closing price of the Ordinary Shares exceeds $12.50 per share for any 20 trading days within a 30-trading day period following the Consummation Date (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations). In addition, the Subscriber shall not sell, transfer, pledge, hypothecate or otherwise dispose of any or all of the remaining 50% of the Shares until one year after the Consummation Date. Notwithstanding the foregoing, the aforesaid restrictions shall lapse if, subsequent to the Consummation Date, the Company consummates a subsequent liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property.
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5.5 Registration Rights . The Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after they are registered pursuant to a Registration Rights Agreement to be entered into with the Company prior to the closing of the IPO (“ Registration Rights Agreement ”). The Subscriber is entitled to make such number of demands that the Company registers the Shares pursuant to the terms and restrictions as set forth in the Registration Rights Agreement.
6. Other Agreements .
6.1. Further Assurances . The Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
6.2 No Obligation as to Employment . The Company is not by reason of this Agreement obligated to employ, or continue to employ, the Subscriber in any capacity.
6.3. Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth on the first page of this Agreement or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by certified mail, on the (5 th ) business day following the day such mailing is made.
6.4. Entire Agreement . This Agreement, together with the Letter Agreement, substantially in the form to be filed as an exhibit to the Company’s registration statement on Form S-1, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
6.5. Modifications and Amendments . The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.
6.6. Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
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6.7. Assignment . The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.
6.8. Benefit . All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.
6.9. Governing Law . This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the British Virgin Islands for agreements made and to be wholly performed within such country.
6.10. Severability . In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
6.11. No Waiver of Rights, Powers and Remedies . No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
6.12. Survival of Representations and Warranties . All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
6.13. No Broker or Finder . Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
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6.14. Headings and Captions . The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
6.15. Counterparts . This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
7. Voting and Tender of Shares . The Subscriber agrees to vote the Shares as well as any Ordinary Shares acquired in the IPO or the aftermarket in favor of a business combination that the Company negotiates and presents for approval to the Company’s shareholders and shall not seek redemption with respect to the Shares. Additionally, the Subscriber agrees not to tender any Share in connection with a tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.
8. Indemnification . Each party shall indemnify the other and the underwriter of the IPO against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.
[Signature Page Follows]
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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this agreement and return it to us.
Very truly yours, | ||
DT ASIA INVESTMENTS LIMITED | ||
By:
|
/s/ Winnie Lai Ling Ng |
|
Name: | Winnie Lai Ling Ng | |
Title: | Sole Director |
Accepted and agreed this
June 8, 2014
DeTiger Holdings Limited | ||
By: |
/s/ Winnie Lai Ling Ng |
|
Name: | Winnie Lai Ling Ng | |
Title: | Sole Director |
9
Exhibit 10.8
UNIT SUBSCRIPTION AGREEMENT
This UNIT SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of this 26 th day of August, 2014 by and between DT Asia Investments Limited, a British Virgin Islands business company (the “ Company ”), having its principal place of business at Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong, and DeTiger Holdings Limited (the “ Purchaser ”).
WHEREAS, the Company desires to sell on a private placement basis (the “ Offering ”) an aggregate of 290,000 units (the “ Initial Units ”) of the Company, each Initial Unit comprised of one ordinary share of the Company, no par value per share (the “ Ordinary Shares ”), one warrant (the “Warrant”) to purchase one-half of one ordinary share (the “Warrant Shares”), to be governed by the Warrant Agreement (defined herein), and one right(the “ Right ”) to receive one-tenth of an Ordinary Share (the “ Right Shares ”) automatically on the consummation of an acquisition, share exchange, purchase of all or substantially all of the assets of, or any other similar business combination with one or more businesses or entities (a “ Business Combination ”), to be governed by the Rights Agreement (defined herein), for a purchase price of $2,900,000, or $10.00 per unit.
WHEREAS, the Purchaser desires to purchase the Initial Units and the Company wishes to accept such subscription.
NOW, THEREFORE, in consideration of the promises and the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
1. Agreement to Subscribe
1.1. Purchase and Issuance of the Initial Units . For the aggregate sum of $3,200,000 (the “ Purchase Price ”), upon the terms and subject to the conditions of this Agreement, the Purchaser hereby agrees to purchase from the Company, and the Company hereby agrees to sell to the Purchaser, on the Closing Date (as defined in Section 1.2) 320,000 Initial Units for a purchase price of $10.00 per unit.
In addition to the foregoing, the Purchaser hereby agrees to purchase up to an additional 30,471 Units (“ Additional Units ” and together with the Initial Units, the “ Units ”) at $10.00 per Additional Unit for a purchase price of $304,710, (the “ Additional Purchase Price ”). The purchase and issuance of the Additional Units shall occur only in the event that the underwriters’ 45-day over-allotment option (“ Over-Allotment Option ”) in the Offering is exercised in full or part. The total number of Additional Units to be purchased hereunder shall be in the same proportion as the amount of the Over-Allotment Option that is exercised. Each purchase of Additional Units shall occur simultaneously with the consummation of any portion of the Over-Allotment Option.
1.2. Closing . The closing (the “ Closing ”) of the Offering, shall take place at the offices of Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, New York, 10105 simultaneously with the consummation of the Company’s initial public offering (“ IPO ”) of 6,000,000 units consisting of Ordinary Shares, Rights and Warrants or the consummation of the exercise of all or any portion of the Over-Allotment Option (each a “ Closing Date ”).
1.3. Delivery of the Purchase Price . At least one business day prior to the effective date of the Company’s registration statement relating to the IPO, or the date of the exercise of the Over-Allotment Option, if any, the Purchaser agrees to deliver the Purchase Price by certified bank check or wire transfer of immediately available funds denominated in United States Dollars to Ellenoff Grossman &Schole LLP, which is hereby irrevocably authorized to deposit such funds on the applicable Closing Date to the trust account which will be established for the benefit of the Company’s public shareholders, managed pursuant to that certain Investment Management Trust Agreement to be entered into by and between the Company and a trustee and into which substantially all of the proceeds of the IPO will be deposited (the “ Trust Account ”). If the IPO is not consummated within 14 days of the date the Purchase Price is delivered to Ellenoff Grossman &Schole LLP, the Purchase Price shall be returned to the Purchaser by certified bank check or wire transfer of immediately available funds denominated in United States Dollars, without interest or deduction.
1.4. Delivery of Unit Certificate . Upon the applicable Closing Date after delivery of the Purchase Price in accordance with Section 1.3, the Purchaser shall become irrevocably entitled to receive a unit certificate representing the Units purchased hereunder.
2. Representations and Warranties of the Purchasers
The Purchaser represents and warrants to the Company that:
2.1. No Government Recommendation or Approval . It understands that no United States federal or state agency or similar agency of any other country has passed upon or made any recommendation or endorsement of the Company, the Offering, the Units, the Rights, Right Shares, Warrants, or Warrant Shares, or the Ordinary Shares underlying the Units(excluding the Right Shares and Warrant Shares, the “ Unit Shares ” and, collectively with the Units, the Right Shares and Warrant Shares, the “ Securities ”).
2.2. Organization . It is a company, validly existing and in good standing under the laws of its jurisdiction and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
2.3. Private Offering . It is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) or it is not a “U.S. Person” as defined in Rule 902 of Regulation S (“Regulation S”) under the Securities Act. The Purchaser acknowledges that the sale contemplated hereby is being made in reliance on a private placement exemption to “Accredited Investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or a non-U.S. Person under Regulation S.
2.4. Authority . This Agreement has been validly authorized, executed and delivered by the Purchaser and is a valid and binding agreement enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
2.5. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Purchaser of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Purchaser’s organizational documents, (ii) any agreement, indenture or instrument to which the Purchaser is a party or (iii) any law, statute, rule or regulation to which the Purchaser is subject, or any agreement, order, judgment or decree to which the Purchaser is subject.
2.6. No Legal Advice from Company . It acknowledges it has had the opportunity to review this Agreement and the transactions contemplated by this Agreement and the other agreements entered into between the parties hereto with its own legal counsel and investment and tax advisors. Except for any statements or representations of the Company made in this Agreement and the other agreements entered into between the parties hereto, it is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of its representatives or agents for legal, tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws of any jurisdiction.
2.7. Access to Information; Independent Investigation . Prior to the execution of this Agreement, it has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, it has relied solely on its own knowledge and understanding of the Company and its business based upon its own due diligence investigation and the information furnished pursuant to this paragraph. It understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and it has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
2.8. Reliance on Representations and Warranties . It understands the Units are being offered and sold to it in reliance on exemptions from the registration requirements under the Securities Act, and analogous provisions in the laws and regulations of various states, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth in this Agreement in order to determine the applicability of such provisions.
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2.9. No Advertisements . It is not subscribing for the Units as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or presented at any seminar or meeting.
2.10. Legend . It acknowledges and agrees the certificates evidencing the Units and the Shares, Rights and Warrants shall bear a restrictive legend (the “ Legend ”), in form and substance as set forth in Section 4 hereof, prohibiting the offer, sale, pledge or transfer of the securities, except (i) pursuant to an effective registration statement covering these securities under the Securities Act or (ii) pursuant to any other exemptions from the registration requirements under the Securities Act and such laws which, in the opinion of counsel for the Company, is available.
2.11. Experience, Financial Capability and Suitability . It is (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Securities and (ii) able to bear the economic risk of his investment in the Securities for an indefinite period of time because the Securities have not been registered under the Securities Act and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. It has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. It has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. It must bear the economic risk of this investment until the Securities are sold pursuant to: (i) an effective registration statement under the Securities Act; or (ii) an exemption from registration is available with respect to such sale. It is able to bear the economic risks of an investment in the Securities and to afford a complete loss the Purchaser’s investment in the Securities.
2.12. Investment Purposes . It is purchasing the Securities solely for investment purposes, for its own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof and it has no present arrangement to sell the interest in the Securities to or through any person or entity.
2.13. Restrictions on Transfer . It acknowledges and understands the Units are being offered in a transaction not involving a public offering in the United States within the meaning of the Securities Act. The Securities have not been registered under the Securities Act, and, if in the future, it decides to offer, resell, pledge or otherwise transfer the Securities, such Securities may be offered, resold, pledged or otherwise transferred only (A) pursuant to an effective registration statement filed under the Securities Act, (B) pursuant to an exemption from registration under Rule 144 promulgated under the Securities Act (“ Rule 144 ”), if available, or (C) pursuant to any other available exemption from the registration requirements of the Securities Act, and in each case in accordance with any applicable securities laws of any state or any other jurisdiction. It agrees that if any transfer of its Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, it may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or another available exemption from registration, itagrees it will not resell the Securities. It further acknowledges that because the Company is a shell company, Rule 144 may not be available to it for the resale of the Securities until the one year anniversary following consummation of the initial Business Combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
3. Representations and Warranties of the Company
The Company represents and warrants to the Purchasers that:
3.1. Valid Issuance of Share Capital . The total number of all classes of share capital which the Company has authority to issue is (i) an unlimited number of Ordinary Shares and (ii) an unlimited number of preferred shares. As of the date hereof, the Company has issued 1,725,000 Ordinary Shares (of which 225,000 Ordinary Shares are subject to forfeiture as described in the registration statement related to the Company’s IPO) and no preferred shares issued and outstanding. All of the issued share capital of the Company has been duly authorized, validly issued, and are fully paid and non-assessable.
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3.2. Title to Securities . Upon issuance in accordance with, and payment pursuant to, the terms hereof, the rights agreement to be entered into with a mutually agreeable rights agent on or prior to the closing of the IPO (“ Rights Agreement ”), , and the warrant agreement to be entered into with a mutually agreeable warrant agent on or prior to the closing of the IPO (“Warrant Agreement”), as the case may be, each of the Rights, Warrants and the Ordinary Shares will be duly and validly issued, fully paid and non-assessable. On the date of issuance of the Units, the Right Shares and Warrant Shares shall have been reserved for issuance. Upon issuance in accordance with the terms hereof, the Rights Agreement, and the Warrant Agreement, as the case may be, the Purchaser will have or receive good title to the Right Shares and the Warrant Shares, free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions hereunder and pursuant to the Insider Letter and (ii) transfer restrictions under federal and state securities laws.
3.3. Organization and Qualification . The Company has been duly incorporated and is validly existing as a British Virgin Islands business company and has the requisite corporate power to own its properties and assets and to carry on its business as now being conducted.
3.4. Authorization; Enforcement . (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to issue the Securities in accordance with the terms hereof, (ii) the execution, delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or shareholders is required, and (iii) this Agreement constitutes, and upon the execution and delivery thereof, the Rights and Rights Agreement and the Warrants and Warrant Agreement will constitute, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy.
3.5. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not (i) result in a violation of the Company’s Memorandum and Articles of Association, (ii) conflict with, or constitute a default under any agreement, indenture or instrument to which the Company is a party or (iii) any law statute, rule or regulation to which the Company is subject or any agreement, order, judgment or decree to which the Company is subject. Other than any Securities and Exchange Commission, state or foreign securities filings which may be required to be made by the Company subsequent to the Closing, and any registration statement which may be filed pursuant thereto, the Company is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or self-regulatory entity in order for it to perform any of its obligations under this Agreement or issue the Units, the Rights, the Warrants or the Ordinary Shares underlying the Rights or the Warrants in accordance with the terms hereof.
4. Legends
4.1. Legend . The Company will issue the Units, the Rights, the Warrants and the Unit Shares, and when issued, the Right Shares and the Warrant Shares, as the case may be, purchased by the Purchaser, in the names of the respective Purchasers. The Securities will bear the following Legend and appropriate “stop transfer” instructions:
THESE SECURITIES (i) HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE RESALE LIMITATIONS SET FORTH IN RULE 905 OF REGULATIONS S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE ESCROW AGREEMENT BETWEEN, AMONG OTHERS, DT ASIA INVESTMENTS LIMITED, EARLYBIRDCAPITAL, INC. AND CONTINENTAL STOCK TRANSFER AND TRUST COMPANY AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP PURSUANT TO THE TERMS SET FORTH THEREIN.”
SECURITIES EVIDENCED BY THIS CERTIFICATE AND THE ordinary shares OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
4.2. Purchasers’ Compliance . Nothing in this Section 4 shall affect in any way the Purchaser’s obligations and agreements to comply with all applicable securities laws upon resale of the Securities.
4.3. Company’s Refusal to Register Transfer of the Securities . The Company shall refuse to register any transfer of the Securities, if in the sole judgment of the Company such purported transfer would not be made (i) pursuant to an effective registration statement filed under the Securities Act, or (ii) pursuant to an available exemption from the registration requirements of the Securities Act.
4.4. Registration Rights . The Purchaser will be entitled to certain registration rights which will be governed by a registration rights agreement (“ Registration Rights Agreement ”) to be entered into with the Company on or prior to the closing of the IPO.
5. Lockup
The Purchaser acknowledges and agrees that the Units, the Rights, the Warrants, the Unit Shares, Warrant Shares, and the Right Shares shall not be transferable, saleable or assignable until 30 days after the consummation of a Business Combination, except to permitted transferees (as defined in the insider letter).
6. Securities Laws Restrictions
The Purchaser agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Securities unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Securities proposed to be transferred shall then be effective or (b) the Company shall have received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction complies with the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
7. Waiver of Liquidation Distributions
In connection with the Securities purchased pursuant to this Agreement, the Purchaser hereby waives any and all right, title, interest or claim of any kind in or to any distributions from the Trust Account.
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8. Rescission Right Waiver and Indemnification
8.1. Rescission Waiver . The Purchaser understands and acknowledges that an exemption from the registration requirements of the Securities Act requires there be no general solicitation of purchasers of the Units. In this regard, if the Offering were deemed to be a general solicitation with respect to the Units, the offer and sale of such Units may not be exempt from registration and, if not, the Purchaser may have a right to rescind its purchase of the Units. In order to facilitate the completion of the Offering and in order to protect the Company, its shareholders and the Trust Account from claims that may adversely affect the Company or the interests of its shareholders, the Purchaser hereby agrees to waive, to the maximum extent permitted by applicable law, any claims, right to sue or rights in law or arbitration, as the case may be, to seek rescission of its purchase of the Units as a result of the issuance of the Units being deemed to be in violation of Section 5 of the Securities Act. The Purchaser acknowledges and agrees this waiver is being made in order to induce the Company to sell the Units to the Purchaser. The Purchaser agrees the foregoing waiver of rescission rights shall apply to any and all known or unknown actions, causes of action, suits, claims or proceedings (collectively, “ Claims ”) and related losses, costs, penalties, fees, liabilities and damages, whether compensatory, consequential or exemplary, and expenses in connection therewith, including reasonable attorneys’ and expert witness fees and disbursements and all other expenses reasonably incurred in investigating, preparing or defending against any Claims, whether pending or threatened, in connection with any present or future actual or asserted right to rescind the purchase of the Units hereunder or relating to the purchase of the Units and the transactions contemplated hereby.
8.2. No Recourse Against Trust Account . The Purchaser agrees not to seek recourse against the Trust Account for any reason whatsoever in connection with its purchase of the Units or any Claim that may arise now or in the future.
8.3. Section 8 Waiver . The Purchaser agrees that to the extent any waiver of rights under this Section 8 is ineffective as a matter of law, the Purchaser has offered such waiver for the benefit of the Company as an equitable right that shall survive any statutory disqualification or bar that applies to a legal right. The Purchaser acknowledges the receipt and sufficiency of consideration received from the Company hereunder in this regard.
9. Terms of the Unit
The Units shall be substantially identical to the Units included in the units offered in the IPO as set forth in the Unit Agreement, except the Units: (i) will be subject to the transfer restrictions described herein, and (ii) are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after certain conditions are met or the resale of the Units is registered under the Securities Act.
10. Governing Law; Jurisdiction ; Waiver of Jury Trial
This Agreement shall be governed by and construed in accordance with the laws of the British Virgin Islands for agreements made and to be wholly performed within such country. The parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby.
11. Assignment; Entire Agreement; Amendment
11.1. Assignment . Neither this Agreement nor any rights hereunder may be assigned by any party to any other person other than by the Purchaser, without the prior consent of the Company, to one or more persons agreeing to be bound by the terms hereof. Upon such assignment by a Purchaser, the assignee(s) shall become Purchaser hereunder and have the rights and obligations provided for herein to the extent of such assignment.
11.2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any and all prior discussions, agreements and understandings of any and every nature.
11.3. Amendment . Except as expressly provided in this Agreement, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought.
11.4. Binding upon Successors . This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and permitted assigns.
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12. Notices; Indemnity
12.1 Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth herein or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by certified mail, on the fifth business day following the day such mailing is made.
12.2 Indemnification . Each party shall indemnify the other party against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement set forth in this Agreement.
13. Counterparts
This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
14. Survival; Severability
14.1. Survival . The representations, warranties, covenants and agreements of the parties hereto shall survive the Closing and one (1) year following the consummation of an initial Business Combination.
14.2. Severability . In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party.
15. Headings
The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
16. Construction
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “ include ,” “ includes ,” and “ including ” will be deemed to be followed by “ without limitation .” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “ this Agreement ,” “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
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This subscription is accepted by the Company as of the date first written above.
DT ASIA INVESTMENTS LIMITED | ||
By: | /s/ Stephen N. Cannon | |
Name: | Stephen N Cannon | |
Title: | Chief Executive Officer |
Accepted and agreed this
August 26, 2014
DETIGER HOLDINGS LIMITED
By: | /s/ Winnie Lai Ling Ng | |
Name: | Winnie Lai Ling Ng | |
Title: | Director |
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Exhibit 10.9
UNIT SUBSCRIPTION AGREEMENT
This UNIT SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of this 26 th day of August, 2014 by and between DT Asia Investments Limited, a British Virgin Islands business company (the “ Company ”), having its principal place of business at Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong, and EarlyBirdCapital, Inc. (the “ Purchaser ”).
WHEREAS, the Company desires to sell on a private placement basis (the “ Offering ”) an aggregate of 30,000 units (the “ Initial Units ”) of the Company, each Initial Unit comprised of one ordinary share of the Company, no par value per share (the “ Ordinary Shares ”), one warrant (the “ Warrant ”) to purchase one-half of one Ordinary Share (the “ Warrant Shares ”), to be governed by the Warrant Agreement (defined herein), and one right(the “ Right ”) to receive one-tenth of an Ordinary Share (the “ Right Shares ”) automatically on the consummation of an acquisition, share exchange, purchase of all or substantially all of the assets of, or any other similar business combination with one or more businesses or entities (a “ Business Combination ”), to be governed by the Rights Agreement (defined herein), for a purchase price of $300,000, or $10.00 per unit.
WHEREAS, the Purchaser desires to purchase the Initial Units and the Company wishes to accept such subscription.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
1. Agreement to Subscribe
1.1. Purchase and Issuance of the Initial Units . For the aggregate sum of $300,000 (the “ Purchase Price ”), upon the terms and subject to the conditions of this Agreement, the Purchaser hereby agrees to purchase from the Company, and the Company hereby agrees to sell to the Purchaser, on the Closing Date (as defined in Section 1.2) 30,000 Initial Units for a purchase price of $10.00 per unit.
In addition to the foregoing, the Purchaser hereby agrees to purchase up to an additional 3,279 Units (“ Additional Units ” and together with the Initial Units, the “ Units ”) at $10.00 per Additional Unit for a purchase price of $32,790, (the “ Additional Purchase Price ”). The purchase and issuance of the Additional Units shall occur only in the event that the underwriters’ 45-day over-allotment option (“ Over-Allotment Option ”) in the Offering is exercised in full or part. The total number of Additional Units to be purchased hereunder shall be in the same proportion as the amount of the Over-Allotment Option that is exercised. Each purchase of Additional Units shall occur simultaneously with the consummation of any portion of the Over-Allotment Option.
1.2. Closing . The closing (the “ Closing ”) of the Offering, shall take place at the offices of Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, New York, New York, 10105 simultaneously with the consummation of the Company’s initial public offering (“ IPO ”) of 6,000,000 units consisting of Ordinary Shares, Rights and Warrants or the consummation of the exercise of all or any portion of the Over-Allotment Option (each a “ Closing Date ”).
1.3. Delivery of the Purchase Price . At least one business day prior to the effective date of the Company’s registration statement relating to the IPO, or the date of the exercise of the Over-Allotment Option, if any, the Purchaser agrees to deliver the Purchase Price by certified bank check or wire transfer of immediately available funds denominated in United States Dollars to Ellenoff Grossman & Schole LLP, which is hereby irrevocably authorized to deposit such funds on the applicable Closing Date to the trust account which will be established for the benefit of the Company’s public shareholders, managed pursuant to that certain Investment Management Trust Agreement to be entered into by and between the Company and a trustee and into which substantially all of the proceeds of the IPO will be deposited (the “ Trust Account ”). If the IPO is not consummated within 14 days of the date the Purchase Price is delivered to Ellenoff Grossman & Schole LLP, the Purchase Price shall be returned to the Purchaser by certified bank check or wire transfer of immediately available funds denominated in United States Dollars, without interest or deduction.
1.4. Delivery of Unit Certificate . Upon the applicable Closing Date after delivery of the Purchase Price in accordance with Section 1.3, the Purchaser shall become irrevocably entitled to receive a unit certificate representing the Units purchased hereunder.
2. Representations and Warranties of the Purchasers
The Purchaser represents and warrants to the Company that:
2.1. No Government Recommendation or Approval . It understands that no United States federal or state agency or similar agency of any other country has passed upon or made any recommendation or endorsement of the Company, the Offering, the Units, the Rights, Right Shares, Warrants, or Warrant Shares, or the Ordinary Shares underlying the Units (excluding the Right Shares and Warrant Shares, the “ Unit Shares ” and, collectively with the Units, the Right Shares and Warrant Shares, the “ Securities ”).
2.2. Organization . It is a company, validly existing and in good standing under the laws of its jurisdiction and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
2.3. Private Offering . It is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “ Securities Act ”). It acknowledges that the sale contemplated hereby is being made in reliance on a private placement exemption to “Accredited Investors” within the meaning of Section 501(a) of Regulation D under the Securities Act.
2.4. Authority . This Agreement has been validly authorized, executed and delivered by the Purchaser and is a valid and binding agreement enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
2.5. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Purchaser of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Purchaser’s organizational documents, (ii) any agreement, indenture or instrument to which the Purchaser is a party or (iii) any law, statute, rule or regulation to which the Purchaser is subject, or any agreement, order, judgment or decree to which the Purchaser is subject.
2.6. No Legal Advice from Company . It acknowledges it has had the opportunity to review this Agreement and the transactions contemplated by this Agreement and the other agreements entered into between the parties hereto with its own legal counsel and investment and tax advisors. Except for any statements or representations of the Company made in this Agreement and the other agreements entered into between the parties hereto, it is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of its representatives or agents for legal, tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws of any jurisdiction.
2.7. Access to Information; Independent Investigation . Prior to the execution of this Agreement, it has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, it has relied solely on its own knowledge and understanding of the Company and its business based upon its own due diligence investigation and the information furnished pursuant to this paragraph. It understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and it has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
2.8. Reliance on Representations and Warranties . It understands the Units are being offered and sold to it in reliance on exemptions from the registration requirements under the Securities Act, and analogous provisions in the laws and regulations of various states, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth in this Agreement in order to determine the applicability of such provisions.
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2.9. No Advertisements . It is not subscribing for the Units as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or presented at any seminar or meeting.
2.10. Legend . It acknowledges and agrees the certificates evidencing the Units and the Shares, Rights and Warrants shall bear a restrictive legend (the “ Legend ”), in form and substance as set forth in Section 4 hereof, prohibiting the offer, sale, pledge or transfer of the securities, except (i) pursuant to an effective registration statement covering these securities under the Securities Act or (ii) pursuant to any other exemptions from the registration requirements under the Securities Act and such laws which, in the opinion of counsel for the Company, is available.
2.11. Experience, Financial Capability and Suitability . It is (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Securities and (ii) able to bear the economic risk of his investment in the Securities for an indefinite period of time because the Securities have not been registered under the Securities Act and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. It has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. It has substantial experience in evaluating and investing in transactions of securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. It must bear the economic risk of this investment until the Securities are sold pursuant to: (i) an effective registration statement under the Securities Act; or (ii) an exemption from registration is available with respect to such sale. It is able to bear the economic risks of an investment in the Securities and to afford a complete loss the Purchaser’s investment in the Securities.
2.12. Investment Purposes . It is purchasing the Securities solely for investment purposes, for its own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof and it has no present arrangement to sell the interest in the Securities to or through any person or entity.
2.13. Restrictions on Transfer . It acknowledges and understands the Units are being offered in a transaction not involving a public offering in the United States within the meaning of the Securities Act. The Securities have not been registered under the Securities Act, and, if in the future, it decides to offer, resell, pledge or otherwise transfer the Securities, such Securities may be offered, resold, pledged or otherwise transferred only (A) pursuant to an effective registration statement filed under the Securities Act, (B) pursuant to an exemption from registration under Rule 144 promulgated under the Securities Act (“ Rule 144 ”), if available, or (C) pursuant to any other available exemption from the registration requirements of the Securities Act, and in each case in accordance with any applicable securities laws of any state or any other jurisdiction. It agrees that if any transfer of its Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, it may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or another available exemption from registration, it agrees it will not resell the Securities. It further acknowledges that because the Company is a shell company, Rule 144 may not be available to it for the resale of the Securities until the one year anniversary following consummation of the initial Business Combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
3. Representations and Warranties of the Company
The Company represents and warrants to the Purchasers that:
3.1. Valid Issuance of Share Capital . The total number of all classes of share capital which the Company has authority to issue is (i) an unlimited number of Ordinary Shares and (ii) an unlimited number of preferred shares. As of the date hereof, the Company has issued 1,725,000 Ordinary Shares (of which 225,000 Ordinary Shares are subject to forfeiture as described in the registration statement related to the Company’s IPO) and no preferred shares issued and outstanding. All of the issued share capital of the Company has been duly authorized, validly issued, and are fully paid and non-assessable.
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3.2. Title to Securities . Upon issuance in accordance with, and payment pursuant to, the terms hereof, the rights agreement to be entered into with a mutually agreeable rights agent on or prior to the closing of the IPO (“ Rights Agreement ”), and the warrant agreement to be entered into with a mutually agreeable warrant agent on or prior to the closing of the IPO (“ Warrant Agreement ”), as the case may be, each of the Rights, Warrants and the Ordinary Shares will be duly and validly issued, fully paid and non-assessable. On the date of issuance of the Units, the Right Shares and Warrant Shares shall have been reserved for issuance. Upon issuance in accordance with the terms hereof, the Rights Agreement, and the Warrant Agreement, as the case may be, the Purchaser will have or receive good title to the Right Shares and the Warrant Shares free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions hereunder and pursuant to the Insider Letter and (ii) transfer restrictions under federal and state securities laws.
3.3. Organization and Qualification . The Company has been duly incorporated and is validly existing as a British Virgin Islands business company and has the requisite corporate power to own its properties and assets and to carry on its business as now being conducted.
3.4. Authorization; Enforcement . (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and to issue the Securities in accordance with the terms hereof, (ii) the execution, delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or shareholders is required, and (iii) this Agreement constitutes, and upon the execution and delivery thereof, the Rights and Rights Agreement and the Warrants and Warrant Agreement will constitute, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by equitable principles of general application and except as enforcement of rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy.
3.5. No Conflicts . The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not (i) result in a violation of the Company’s Memorandum and Articles of Association, (ii) conflict with, or constitute a default under any agreement, indenture or instrument to which the Company is a party or (iii) any law statute, rule or regulation to which the Company is subject or any agreement, order, judgment or decree to which the Company is subject. Other than any Securities and Exchange Commission, state or foreign securities filings which may be required to be made by the Company subsequent to the Closing, and any registration statement which may be filed pursuant thereto, the Company is not required under federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or self-regulatory entity in order for it to perform any of its obligations under this Agreement or issue the Units, the Rights, the Warrants or the Ordinary Shares underlying the Rights or the Warrants in accordance with the terms hereof.
4. Legends
4.1. Legend . The Company will issue the Units, the Rights, the Warrants and the Unit Shares, and when issued, the Right Shares and the Warrant Shares, as the case may be, purchased by the Purchaser, in the names of the respective Purchasers. The Securities will bear the following Legend and appropriate “stop transfer” instructions:
THESE SECURITIES (i) HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE RESALE LIMITATIONS SET FORTH IN RULE 905 OF REGULATIONS S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE ESCROW AGREEMENT BETWEEN, AMONG OTHERS, DT ASIA INVESTMENTS LIMITED, EARLYBIRDCAPITAL, INC. AND CONTINENTAL STOCK TRANSFER AND TRUST COMPANY AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP PURSUANT TO THE TERMS SET FORTH THEREIN.”
SECURITIES EVIDENCED BY THIS CERTIFICATE AND THE ordinary shares OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
4.2. Purchasers’ Compliance . Nothing in this Section 4 shall affect in any way the Purchaser’s obligations and agreements to comply with all applicable securities laws upon resale of the Securities.
4.3. Company’s Refusal to Register Transfer of the Securities . The Company shall refuse to register any transfer of the Securities, if in the sole judgment of the Company such purported transfer would not be made (i) pursuant to an effective registration statement filed under the Securities Act, or (ii) pursuant to an available exemption from the registration requirements of the Securities Act.
4.4. Registration Rights . The Purchaser will be entitled to certain registration rights which will be governed by a registration rights agreement (“ Registration Rights Agreement ”) to be entered into with the Company on or prior to the closing of the IPO.
5. Lockup
The Purchaser acknowledges and agrees that the Units, the Rights, the Warrants, the Unit Shares, Warrant Shares, and the Right Shares shall not be transferable, saleable or assignable until 30 days after the consummation of a Business Combination, except to permitted transferees (as defined in the insider letter). Additionally, the Units, the Rights, the Warrants,, the Unit Shares, the Warrant Shares, and the Right Shares will be deemed compensation by the Financial Industry Regulatory Authority (“FINRA”) and will therefore be subject to lock-up for a period of 180 days immediately following the date of effectiveness or commencement of sales of the IPO, subject to certain limited exceptions, pursuant to Rule 5110(g)(1) of the FINRA Manual. Additionally, the Units, the Rights, the Warrants, the Unit Shares, the Warrant Shares, and the Right Shares may not be sold, transferred, assigned, pledged or hypothecated for a one-year period (including the foregoing 180-day period) following the effective date of the registration statement relating to the IPO except to any underwriter or selected dealer participating in the IPO and the bona fide officers or partners of the Purchaser and any such participating underwriter or selected dealer.
6. Securities Laws Restrictions
The Purchaser agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Securities unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Securities proposed to be transferred shall then be effective or (b) the Company shall have received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction complies with the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
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7. Waiver of Liquidation Distributions
In connection with the Securities purchased pursuant to this Agreement, the Purchaser hereby waives any and all right, title, interest or claim of any kind in or to any distributions from the Trust Account.
8. Rescission Right Waiver and Indemnification
8.1. Rescission Waiver . The Purchaser understands and acknowledges that an exemption from the registration requirements of the Securities Act requires there be no general solicitation of purchasers of the Units. In this regard, if the Offering were deemed to be a general solicitation with respect to the Units, the offer and sale of such Units may not be exempt from registration and, if not, the Purchaser may have a right to rescind its purchase of the Units. In order to facilitate the completion of the Offering and in order to protect the Company, its shareholders and the Trust Account from claims that may adversely affect the Company or the interests of its shareholders, the Purchaser hereby agrees to waive, to the maximum extent permitted by applicable law, any claims, right to sue or rights in law or arbitration, as the case may be, to seek rescission of its purchase of the Units as a result of the issuance of the Units being deemed to be in violation of Section 5 of the Securities Act. The Purchaser acknowledges and agrees this waiver is being made in order to induce the Company to sell the Units to the Purchaser. The Purchaser agrees the foregoing waiver of rescission rights shall apply to any and all known or unknown actions, causes of action, suits, claims or proceedings (collectively, “ Claims ”) and related losses, costs, penalties, fees, liabilities and damages, whether compensatory, consequential or exemplary, and expenses in connection therewith, including reasonable attorneys’ and expert witness fees and disbursements and all other expenses reasonably incurred in investigating, preparing or defending against any Claims, whether pending or threatened, in connection with any present or future actual or asserted right to rescind the purchase of the Units hereunder or relating to the purchase of the Units and the transactions contemplated hereby.
8.2. No Recourse Against Trust Account . The Purchaser agrees not to seek recourse against the Trust Account for any reason whatsoever in connection with its purchase of the Units or any Claim that may arise now or in the future.
8.3. Section 8 Waiver . The Purchaser agrees that to the extent any waiver of rights under this Section 8 is ineffective as a matter of law, the Purchaser has offered such waiver for the benefit of the Company as an equitable right that shall survive any statutory disqualification or bar that applies to a legal right. The Purchaser acknowledges the receipt and sufficiency of consideration received from the Company hereunder in this regard.
9. Terms of the Unit
The Units shall be substantially identical to the Units included in the units offered in the IPO as set forth in the Unit Agreement, except the Units: (i) will be subject to the transfer restrictions described herein, and (ii) are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after certain conditions are met or the resale of the Units is registered under the Securities Act.
10. Governing Law; Jurisdiction ; Waiver of Jury Trial
This Agreement shall be governed by and construed in accordance with the laws of the British Virgin Islands for agreements made and to be wholly performed within such country. The parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby.
11. Assignment; Entire Agreement; Amendment
11.1. Assignment . Neither this Agreement nor any rights hereunder may be assigned by any party to any other person other than by the Purchaser, without the prior consent of the Company, to one or more persons agreeing to be bound by the terms hereof. Upon such assignment by a Purchaser, the assignee(s) shall become Purchaser hereunder and have the rights and obligations provided for herein to the extent of such assignment.
11.2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any and all prior discussions, agreements and understandings of any and every nature.
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11.3. Amendment . Except as expressly provided in this Agreement, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought.
11.4. Binding upon Successors . This Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective heirs, legal representatives, successors and permitted assigns.
12. Notices; Indemnity
12.1 Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth herein or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) sent by overnight courier, or (c) sent by certified mail, return receipt requested, postage prepaid. All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by certified mail, on the fifth business day following the day such mailing is made.
12.2 Indemnification . Each party shall indemnify the other party against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement set forth in this Agreement.
13. Counterparts
This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
14. Survival; Severability
14.1. Survival . The representations, warranties, covenants and agreements of the parties hereto shall survive the Closing and one (1) year following the consummation of an initial Business Combination.
14.2. Severability . In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party.
15. Headings
The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
16. Construction
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “ include ,” “ includes ,” and “ including ” will be deemed to be followed by “ without limitation .” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “ this Agreement ,” “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
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This subscription is accepted by the Company as of the date first written above.
DT ASIA INVESTMENTS LIMITED | ||
By: | /s/ Stephen N Cannon | |
Name: | Stephen N Cannon | |
Title: | Chief Executive Officer |
Accepted and agreed this
August 26, 2014
EARLYBIRDCAPITAL, INC.
By: | /s/ Steven Levine | |
Name: | Steven Levine | |
Title: | CEO |
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Exhibit 10.10
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is entered into as of the September [•], 2014, by and among DT Asia Investments Limited, a British Virgin Islands company (the “ Company ”), and the undersigned parties listed under Investor on the signature page hereto (each, an “Investor” and collectively, the “ Investors ”).
WHEREAS, the Investors currently hold all of the outstanding Ordinary Shares of the Company issued prior to the consummation of the Company’s initial public offering (the “ Initial Shares ”);
WHEREAS, certain of the Investors are privately purchasing 320,000 Units simultaneously with the consummation of the Company’s initial public offering (the “ Initial Private Units ”), and such Investors will purchase up to 33,750 additional Units (“ Over-Allotment Private Units ,” together with the Initial Private Units, the “ Private Units ”) in the event the underwriters of the Company’s initial public offering exercise the over-allotment option in full or in part;
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the Investors with certain rights relating to the registration of the Initial Shares, the Private Units and the Working Capital Units (defined below);
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. DEFINITIONS . The following capitalized terms used herein have the following meanings:
“ Agreement ” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“ Business Combination ” means a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities.
“ Commission ” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“ Company ” is defined in the preamble to this Agreement.
“ Demand Registration ” is defined in Section 2.1.1.
“ Demanding Holder ” is defined in Section 2.1.1.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“ Form S-3 ” is defined in Section 2.3.
“ Indemnified Party ” is defined in Section 4.3.
“ Indemnifying Party ” is defined in Section 4.3.
“ Initial Shares ” is defined in the preamble to this Agreement.
“ Initial Private Units ” is defined in the preamble to this Agreement.
“ Investor ” is defined in the preamble to this Agreement.
“ Investor Indemnified Party ” is defined in Section 4.1.
“ Maximum Number of Shares ” is defined in Section 2.1.4.
“ Notices ” is defined in Section 6.3.
“ Option Securities ” is defined in Section 2.1.4.
“ Ordinary Shares ” means the Ordinary Shares of the Company, no par value.
“ Over-Allotment Private Units ” is defined in the preamble to this Agreement.
“ Piggy-Back Registration ” is defined in Section 2.2.1.
“ Private Units ” is defined in the preamble to this Agreement.
“ Register ,” “ Registered ” and “ Registration ” mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“ Registrable Securities ” means (i) all of the Initial Shares, (ii) all of the Private Units (and underlying Ordinary Shares) and (iii) all of the Working Capital Units (and underlying Ordinary Shares). Registrable Securities include any warrants, share capital or other securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of such Initial Shares, Private Units (and underlying Ordinary Shares) and Working Capital Units (and underlying Ordinary Shares). As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding, or (d) the Registrable Securities are freely saleable under Rule 144 without volume limitations.
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“ Registration Statement ” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“ Release Date ” means the date on which the Initial Shares are disbursed from escrow pursuant to Section 3 of that certain Share Escrow Agreement dated as of [•], 2014 by and among certain of the Investors and Continental Stock Transfer & Trust Company.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“ Underwriter ” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
“ Units ” means the units of the Company, each comprised of one ordinary share, one right to receive one-tenth of one ordinary share automatically on the consummation of an initial business combination, and one Warrant to purchase one-half of one ordinary share.
“Warrants” means the warrants of the Company underlying the Units, each to purchase one half of one ordinary share.
“ Working Capital Units ” means any Units held by Investors, officers or directors of the Company or their affiliates which may be issued in payment of working capital loans made to the Company.
2. REGISTRATION RIGHTS .
2.1 Demand Registration .
2.1.1 Request for Registration . At any time and from time to time on or after (i) the date that the Company consummates a Business Combination with respect to the Private Units (or underlying Ordinary Shares) and Working Capital Units (or underlying Ordinary Shares) or (ii) three months prior to the Release Date with respect to all other Registrable Securities, the holders of a majority-in-interest of such Private Units (or underlying Ordinary Shares), Working Capital Units (or underlying Ordinary Shares) or other Registrable Securities, as the case may be, held by the Investors, officers or directors of the Company or their affiliates, or the transferees of the Investors, may make a written demand for registration under the Securities Act of all or part of their Private Units (or underlying Ordinary Shares), Working Capital Units (or underlying Ordinary Shares) or other Registrable Securities, as the case may be (a “ Demand Registration ”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will notify all holders of Registrable Securities of the demand, and each holder of Registrable Securities who wishes to include all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “ Demanding Holder ”) shall so notify the Company within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more than an aggregate of three (3) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities.
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2.1.2 Effective Registration . A registration will not count as a Demand Registration until the Registration Statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
2.1.3 Underwritten Offering . If a majority-in-interest of the Demanding Holders so elect and such holders so advise the Company as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a majority-in-interest of the holders initiating the Demand Registration.
2.1.4 Reduction of Offering . If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights held by other shareholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “ Maximum Number of Shares ”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such Person has requested be included in such registration, regardless of the number of shares held by each such Person (such proportion is referred to herein as " Pro Rata ")) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other securities registrable pursuant to the terms of the Unit Purchase Option issued to EarlyBirdCapital, Inc. or its designees in connection with the Company’s initial public offering (the “ Unit Purchase Option ” and such registrable securities, the “ Option Securities ”) as to which “piggy-back” registration has been requested by the holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares have not been reached under the foregoing clauses (i), (ii), and (iii), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Shares.
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2.1.5 Withdrawal . If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then such registration shall not count as a Demand Registration provided for in Section 2.1.
2.2 Piggy-Back Registration .
2.2.1 Piggy-Back Rights . If at any time on or after the date the Company consummates a Business Combination the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company including, without limitation, pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any employee share option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following receipt of such notice (a “ Piggy-Back Registration ”). The Company shall cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
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2.2.2 Reduction of Offering . If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of Ordinary Shares which the Company desires to sell, taken together with Ordinary Shares, if any, as to which registration has been demanded pursuant to written contractual arrangements with persons other than the holders of Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.2, and the Ordinary Shares, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:
a) If the registration is undertaken for the Company’s account: (A) first, the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities, if any, comprised of Registrable Securities and Option Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C) third, to the extent that the Maximum Number of shares has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares;
b) If the registration is a “demand” registration undertaken at the demand of holders of Option Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares; and
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c) If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable Securities or of Option Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), collectively the Ordinary Shares or other securities comprised of Registrable Securities and Option Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof and of the Unit Purchase Option, as applicable, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.
2.2.3 Withdrawal . Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.2.4 Registrations on Form S-3 . The holders of Registrable Securities may at any time and from time to time, request in writing that the Company register the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which may be available at such time (“ Form S-3 ”); provided, however, that the Company shall not be obligated to effect such request through an underwritten offering. Upon receipt of such written request, the Company will promptly give written notice of the proposed registration to all other holders of Registrable Securities, and, as soon as practicable thereafter, effect the registration of all or such portion of such holder’s or holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities or other securities of the Company, if any, of any other holder or holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii) if the holders of the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
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3. REGISTRATION PROCEDURES .
3.1 Filings; Information . Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 Filing Registration Statement . The Company shall use its best efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its best efforts to cause such Registration Statement to become effective and use its best efforts to keep it effective for the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by the President or Chairman of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2 Copies . The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the holders of Registrable Securities included in such registration, and such holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as the holders of Registrable Securities included in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable Securities owned by such holders.
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3.1.3 Amendments and Supplements . The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn or until such time as the Registrable Securities cease to be Registrable Securities as defined by the Agreement.
3.1.4 Notification . After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) business days after such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further notify such holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
3.1.5 State Securities Laws Compliance . The Company shall use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction.
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3.1.6 Agreements for Disposition . The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such holder’s material agreements and organizational documents, and with respect to written information relating to such holder that such holder has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation . The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records . The Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any of them in connection with such Registration Statement.
3.1.9 Opinions and Comfort Letters . The Company shall furnish to each holder of Registrable Securities included in any Registration Statement a signed counterpart, addressed to such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii) any comfort letter from the Company’s independent public accountants delivered to any Underwriter. In the event no legal opinion is delivered to any Underwriter, the Company shall furnish to each holder of Registrable Securities included in such Registration Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to the Company to the effect that the Registration Statement containing such prospectus has been declared effective and that no stop order is in effect.
3.1.10 Earnings Statement . The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders, as soon as practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
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3.1.11 Listing . The Company shall use its best efforts to cause all Registrable Securities included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority of the Registrable Securities included in such registration.
3.1.12 Road Show . If the registration involves the registration of Registrable Securities involving gross proceeds in excess of $25,000,000, the Company shall use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any underwritten offering.
3.2 Obligation to Suspend Distribution . Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence of material non-public information, each holder of Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company, each such holder will deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses . The Company shall bear all costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts retained by the Company in connection with such registration and (ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling shareholders and the Company shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of shares each is selling in such offering.
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3.4 Information . The holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the Company’s obligation to comply with Federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION .
4.1 Indemnification by the Company . The Company agrees to indemnify and hold harmless each Investor and each other holder of Registrable Securities, and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “ Investor Indemnified Party ”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such selling holder expressly for use therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities . Each selling holder of Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling holder, indemnify and hold harmless the Company, each of its directors and officers and each Underwriter (if any), and each other selling holder and each other person, if any, who controls another selling holder or such Underwriter within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or allegedly untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or the alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company by such selling holder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other selling holder or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage, liability or action. Each selling holder’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling holder.
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4.3 Conduct of Indemnification Proceedings . Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, notify such other person (the “ Indemnifying Party ”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
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4.4 Contribution .
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 The amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such holder from the sale of Registrable Securities which gave rise to such contribution obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION .
5.1 Rule 144 . The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS .
6.1 Other Registration Rights . The Company represents and warrants that no person, other than the holders of the Registrable Securities and Option Securities, has any right to require the Company to register any of the Company’s share capital for sale or to include the Company’s share capital in any registration filed by the Company for the sale of share capital for its own account or for the account of any other person.
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6.2 Assignment; No Third Party Beneficiaries . This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the holders of Registrable Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction with and to the extent of any transfer of Registrable Securities by any such holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or holder of Registrable Securities or of any assignee of the Investors or holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices . All notices, demands, requests, consents, approvals or other communications (collectively, “ Notices ”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours, then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day delivery.
To the Company:
DT Asia Investments Limited
Room 1102, 11/F.,
Beautiful Group Tower,
77 Connaught Road Central,
Hong Kong
Attn: Stephen N. Cannon, Chief Executive Officer
with a copy to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas,
New York, NY10105
Attn: Stuart Neuhauser, Esq.
To an Investor, to the address set forth below such Investor’s name on Exhibit A hereto.
6.4 Severability . This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
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6.5 Counterparts . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
6.6 Entire Agreement . This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.
6.7 Modifications and Amendments . No amendment, modification or termination of this Agreement shall be binding upon any party unless executed in writing by such party.
6.8 Titles and Headings . Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
6.9 Waivers and Extensions . Any party to this Agreement may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts.
6.10 Remedies Cumulative . In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the Investor or any other holder of Registrable Securities may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
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6.11 Governing Law . In connection with Section 5-1401 of the General Obligations Law of the State of New York, this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this Agreement shall be resolved through final and biding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators. The Company hereby appoints, without power of revocation, Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, New York, NY 10105 Fax No.: (212) 370-7889 Attn: Stuart Neuhauser, Esq., as their respective agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of this Agreement. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
6.12 Waiver of Trial by Jury . Each party hereby irrevocably and unconditionally waives the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the transactions contemplated hereby, or the actions of the Investor in the negotiation, administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
COMPANY: | ||
DT ASIA INVESTMENTS LIMITED | ||
By: | ||
Name: | ||
Title: | ||
INVESTORS: | ||
DeTiger Holdings Limited | ||
By: | ||
Name: | ||
Title: | ||
Emily Chui-Hung Tong | ||
Stephen N. Cannon | ||
Haibin Wang | ||
Hai Wang | ||
Foelan Wong | ||
Jason Kon Man Wong | ||
EARLYBIRDCAPITAL, INC. | ||
By: | ||
Name: | ||
Title: |
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[Signature Page to Registration Rights Agreement]
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EXHIBIT A
Name | Address | |
DeTiger Holdings Limited |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
Emily Chui-Hung Tong |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong Sao Paulo, Brazil. |
|
Stephen N. Cannon |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
Haibin Wang |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
Hai Wang |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
Foelan Wong |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
Jason Kon Man Wong |
Room 1102, 11/F., Beautiful Group Tower, 77 Connaught Road Central, Hong Kong |
|
EarlyBirdCapital, Inc. |
275 Madison Avenue, 27th Floor New York, New York 10016 Attn: David M. Nussbaum, Chairman |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the inclusion in this Registration Statement of DT Asia Investments Limited (the “Company”) on Amendment No. 2 to Form S-1 (No. 333-197187) of our report dated June 25, 2014, except for Note 1, Note 3 and Note 6, as to which the date is August 5, 2014, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audit of the financial statements of the Company as of June 10, 2014 and for the period from April 8, 2014 to June 10, 2014, which appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the caption “Experts” in such Prospectus.
/s/ UHY LLP
New York, New York
August 27, 2014
Exhibit 99.3
CONSENT OF HAIBIN WANG
DT Asia Investments Limited (the “Company”) intends to file a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) registering securities for issuance in its initial public offering. As required by Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the Registration Statement as a Director Nominee.
Dated: August 26, 2014
/s/ Haibin Wang | |
Haibin Wang |
Exhibit 99.4
CONSENT OF HAIBIN WANG
DT Asia Investments Limited (the “Company”) intends to file a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) registering securities for issuance in its initial public offering. As required by Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the Registration Statement as a Director Nominee.
Dated: August 26, 2014
/s/ Foelan Wong | |
Foelan Wong |
Exhibit 99.5
CONSENT OF HAIBIN WANG
DT Asia Investments Limited (the “Company”) intends to file a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) registering securities for issuance in its initial public offering. As required by Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the Registration Statement as a Director Nominee.
Dated: August 26, 2014
/s/ Hai Wang | |
Hai Wang |
Exhibit 99.6
CONSENT OF HAIBIN WANG
DT Asia Investments Limited (the “Company”) intends to file a Registration Statement on Form S-1 (together with any amendments or supplements thereto, the “Registration Statement”) registering securities for issuance in its initial public offering. As required by Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the Registration Statement as a Director Nominee.
Dated: August 26, 2014
/s/ Jason Kon Man Wong | |
Jason Kon Man Wong |