Date] Boon Siew Building Singapore 229833 Maxim Group, LLC New York, New York 10174 Re: Initial Public Offering Gentlemen:
[Date]
S.E. Asia
Emerging Market Co., Ltd
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Maxim
Group, LLC
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Re: Initial Public
Offering
Gentlemen:
This
letter agreement (the “Agreement”) by the undersigned
beneficial owner of Ordinary Shares of S.E. Asia Emerging Market Co., Ltd (the
“Company”) is made in
consideration of Maxim Group, LLC (“Maxim”) pursuing an
underwritten initial public offering of the securities of the Company (“IPO”).
The
undersigned hereby agrees as follows (certain capitalized terms used herein are
defined in Paragraph 15 hereof):
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1.
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Solely
in the event the Company solicits its shareholders for approval of a
Business Combination, the undersigned will vote all of his Ordinary
Shares, including any IPO Shares acquired in connection with or following
the IPO, in favor of such initial Business
Combination.
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2.
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In
the event that the Company fails to consummate a Business Combination
prior to the occurrence of the Termination Event, the undersigned will
take all reasonable actions within his power, in accordance with the
Company’s amended and restated memorandum and articles of association, to
further the return to the holders of the IPO Shares, pro rata, the amount
held in the Trust Account, less taxes and any interest earned on the
proceeds placed in the Trust Account that were used for working capital
purposes. In the event of the liquidation of the Trust Account
(other than in connection with the consummation of a Business
Combination), the undersigned agrees to indemnify and hold harmless the
Company against any and all loss, liability, claims, 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, whether pending or threatened, or any claim
whatsoever) to which the Company may become subject as a result of any
claim by any vendor or other Person who is owed money by the Company (in
excess of the proceeds of the IPO not held in trust at such time) for
services rendered to the Company or contracted for or products sold, or by
any target business, but only to the extent necessary, pro rata based upon
the undersigned’s beneficial ownership interest in the Company, to ensure
that such loss, liability, claim, damage or expense does not reduce the
amount in the Trust Account below $5.48 per share (or $5.51 per share if
the underwriter’s over-allotment option is exercised in full); provided that
such indemnity shall not apply if such vendor or prospective target
business executed an agreement waiving any claims against the Trust
Account and except as to any claims under the indemnity of the
underwriters of the IPO against certain liabilities, including liabilities
under the Securities Act. The undersigned hereby waives: (i)
any and all right, title, interest or claim of any kind (“Claim”) in or to any
funds in, or distributions from, the Trust Account and (ii) in connection
with any Claim the undersigned may have in the future as a result of, or
arising out of, any contracts or agreements with the Company, the right to
seek recourse against the Trust Account for any reason whatsoever; provided, however, the
undersigned shall be entitled to liquidation distributions if no Business
Combination is consummated in connection with any IPO Shares owned by the
undersigned.
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3.
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To
the extent that the Underwriters do not exercise their over-allotment
option to purchase an additional 165,000 Units (as described in the
Registration Statement), the undersigned, along with all other
shareholders of the Company prior to the IPO (the “Existing Shareholders”),
agrees that it shall return to the Company for cancellation, at no cost,
the number of Insider Shares held by the undersigned and the other
Existing Shareholders determined by multiplying 41,250 by a fraction, (i)
the numerator of which is 165,000 minus the number of Units purchased by
the Underwriters upon the exercise of their over-allotment option, and
(ii) the denominator of which is 165,000. The undersigned further agrees
that to the extent that (a) the size of the Offering is increased or
decreased and (b) an adjustment to the number of Insider Shares has been
effected by way of a stock split, stock dividend, reverse stock split,
contribution back to capital or otherwise, in each case in connection with
such increase or decrease in the size of the Offering, then (i) the
references to 165,000 in the numerator and denominator of the formula in
the immediately preceding sentence shall be changed to a number equal to
15.0% of the number of Ordinary Shares included in the Units issued in the
Offering and (ii) the reference to 41,250 in the formula set forth in the
immediately preceding sentence shall be adjusted to such number of
Ordinary Shares that the undersigned (together with all other Existing
Shareholders) would have to return to the Company in order to hold 20.0%
of the Company’s issued and outstanding Ordinary Shares in aggregate with
the Company’s other Existing Shareholders after the Offering (assuming the
Underwriters do not exercise their over-allotment
option).
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4.
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The
undersigned agrees to be [a member of the board of directors][officer
position][special advisor to the Company], until the earlier of: (i) the
consummation by the Company of a Business Combination, (ii) the
Termination Event, (iii) the resignation, death or removal of the
undersigned or (iv) until the undersigned’s successor is duly appointed
and takes office. The undersigned’s biographical information
furnished to the Company and Maxim is true and accurate in all respects,
does not omit any material information with respect to the undersigned’s
background and contains all of the information required to be disclosed
pursuant to the rules governing foreign privates issuers. [The
undersigned’s questionnaire furnished to the Company and Maxim is true and
accurate in all respects.] The undersigned represents and
warrants that:
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a.
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he
is not subject to, or a respondent in, any legal action for, any
injunction, cease-and-desist order or order or stipulation to desist or
refrain from any act or practice relating to the offering of securities in
any jurisdiction;
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b.
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he
has never been convicted of or pleaded guilty to any crime (i) involving
any fraud, (ii) relating to any financial transaction or handling of funds
of another Person, or (iii) pertaining to any dealings in any securities
and he is not currently a defendant in any such criminal
proceeding;
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c.
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he
has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities
license or registration denied, suspended or revoked;
and
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d.
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he
has full right and power, without violating any agreement by which he is
bound, to serve as [a member of the board of directors][officer
position][special advisor to the
Company].
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5.
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The
undersigned has full right and power, without violating any agreement by
which he/it is bound, to enter into this
Agreement.
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6.
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[In
order to minimize potential conflicts of interest which may arise from
multiple affiliations, the undersigned agrees to present to the Company
for its consideration, prior to presentation to any other Person or
entity, any suitable opportunity to acquire an operating business of which
the undersigned, or any company or other entity controlled or managed by
the undersigned, becomes aware, until the earlier of: (i) the consummation
by the Company of a Business Combination, (ii) the Termination Event or
(iii) such time as the undersigned ceases to be an officer or director of
the Company, subject to any pre-existing fiduciary and contractual
obligations the undersigned might have; provided, however, if the
Company’s management rejects such opportunity, the undersigned shall be
free to present such opportunity to any other Person or entity.][Omitted
for non director / officer
shareholders.]
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7.
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The
undersigned acknowledges and agrees that the Company will not consummate
any Business Combination with an entity which is Affiliated with the
undersigned, or any officer, director, advisor or Existing Shareholder of
the Company, unless the Company obtains an opinion from an independent
investment banking firm that the Business Combination is fair to the
Company’s unaffiliated shareholders from a financial point of
view.
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8.
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There
will be no fees, reimbursements, cash payments or compensation of any
kind, including the issuance of any securities of the Company, made to the
undersigned, any member of the family of the undersigned, or any Affiliate
(directly or indirectly) related to the undersigned, nor shall any such
Person accept such compensation, prior to the earlier of consummation of
an initial Business Combination or the Termination Event; provided, however, the
undersigned shall be entitled to (a) reimbursement from the Company for
his out-of-pocket expenses incurred in connection with seeking and
consummating a Business Combination and (b) the Existing Shareholders of
the Company shall be entitled to repayment of an aggregate of $125,000 in
non-interest bearing loans made in connection with the IPO. Additionally,
the undersigned may, but is not obligated to, loan the Company funds in
whatever amount deemed reasonable in the sole discretion of the
undersigned and, in exchange for such loan, receive a convertible note or
other security from the Company.
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9.
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The
undersigned hereby waives in connection with the submission of a Business
Combination to a vote of the Company’s shareholders the right to seek
liquidation proceeds from the trust account with respect to any
Insider Shares owned by the undersigned. For purposes of
clarity, nothing contained herein shall prevent the undersigned from
receiving liquidation proceeds of IPO Shares owed by the undersigned if no
Business Combination is consummated. If the undersigned contemplates a
transfer of any Insider Shares to a “permitted transferee” (i.e. immediate
family members of the Existing Shareholder and trusts established by the
Existing Shareholder for estate planning purposes, to another Existing
Shareholder, to a shareholder of an Existing Shareholder that is an
entity, by virtue of the laws of descent and distribution or pursuant to a
domestic relations order), such transfer shall not be deemed valid or
given effect until the permitted transferee agrees to the waiver (in its
entirety) as set forth in this Paragraph 9 and the transfer restrictions
set forth in Paragraph 10.
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10.
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a.
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With
respect to the Insider Shares, the undersigned shall not, except as
described in the Registration Statement and Paragraph 3 hereof (the “Share Lockup Period”),
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to dispose
of, directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder,
(ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of any
of the Insider Shares, whether any such transaction is to be settled by
delivery of Ordinary Shares or such other securities, in cash or
otherwise, or (iii) publicly announce any intention to effect any
transaction specified in clause (i) or (ii), until: (A) with respect to
50% of such shares, the earlier of: (i) six months after the consummation
of a Business Combination or (ii) 30 months from the date of the
Registration Statement, and (B) with respect to 50% of such shares, one
year after any Business Combination if the target of such Business
Combination remains an operating company at that time, and otherwise such
shares shall be canceled and forfeited. All of the Insider Shares will be
released from such restrictions, if, following consummation of a Business
Combination, the Company engages in a subsequent liquidation, share
exchange, share reconstruction and amalgamation or contractual control
arrangement or engages in any other similar Business Combination 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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b.
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Until
the completion of the Company’s Business Combination (“Warrant Lockup Period”),
the undersigned shall not, except as described in the Registration
Statement, (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of
or agree to dispose of, directly or indirectly, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder, with respect to the Insider Warrants and the Ordinary Shares
underlying the Insider Warrants, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any of the Insider Warrants and the
Ordinary Shares underlying the Insider Warrants, whether any such
transaction is to be settled by delivery of Ordinary Shares or such other
securities, in cash or otherwise, or (iii) publicly announce any intention
to effect any transaction specified in clause (i) or
(ii).
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c.
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Further,
the undersigned agrees that after the Share Lockup Period or the Warrant
Lockup Period, as applicable, has elapsed, the Insider Shares and the
Insider Warrants and the Ordinary Shares underlying such Insider Warrants,
shall only be transferable or saleable pursuant to a sale registered under
the Securities Act or pursuant to an available exemption from registration
under the Securities Act.
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d.
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The
undersigned and the Company understand and agree that the transfer
restrictions set forth in this paragraph 10 shall be in addition to any
and all transfer restrictions relating to (i) the Insider Shares set forth
in that certain Subscription Agreement, effective as of September 9, 2010
and (ii) the Insider Warrants set forth in that certain Warrants
Subscription Agreement, effective as of September 9, 2010, each by and
between the Company and the
undersigned.
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e.
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The
undersigned shall retain all of its rights as a shareholder during the
Share Lockup Period including, without limitation, the right to vote such
shares.
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f.
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During
the Share Lockup Period and Warrant Lockup Period, all dividends payable
in cash with respect to such securities shall be paid to the undersigned,
but all dividends payable in Ordinary Shares or other non-cash property
shall become subject to the applicable lockup period as described herein
and shall be released from such lockup, pro rata, in accordance with the
provisions of Paragraphs 10(a) and 10(b), as
applicable.
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g.
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The
Share Lockup Period shall terminate immediately following the liquidation
of the Trust Account following a Termination Event and the distribution of
funds to the holders of the IPO Shares. For the purposes of
clarity, the Insider Warrants shall expire
worthless.
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11.
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This
Agreement shall be governed by and construed and enforced in accordance
with the laws of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. The undersigned hereby (i) agrees that
any action, proceeding or claim against him/it arising out of or relating
in any way to this Agreement shall be brought and enforced first in the
U.S. District Court for the Southern District of New York, then to such
other federal or state courts located in the State of New York, and
irrevocably submits to such jurisdiction in New York, which jurisdiction
shall be exclusive and (ii) waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient
forum.
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12.
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This
Agreement, including any agreement referenced herein, constitutes the
entire agreement and understanding of the parties hereto in respect of the
subject matter hereof and supersedes all prior understandings, agreements,
or representations by or among the parties hereto, written or oral, to the
extent they relate in any way to the subject matter hereof or the
transactions contemplated hereby. This Agreement may not be changed,
amended, modified or waived (other than to correct a clerical error) as to
any particular provision, except by a written instrument executed by all
parties hereto.
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13.
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No
party hereto may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written consent of
the other party. Any purported assignment in violation of this paragraph
shall be void and ineffectual and shall not operate to transfer or assign
any interest or title to the purported assignee. This Agreement shall be
binding on the undersigned and its respective successors, heirs, personal
representatives and assigns.
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14.
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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 facsimile
transmission.
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15.
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As
used herein, (a) “Affiliate” or “Affiliates” means a
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the Person
specified, where “control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities,
by agreement, as trustee or executor, or otherwise, (b) “Business Combination”
means an initial acquisition, share exchange, share reconstruction and
amalgamation or contractual control arrangement with, purchase of all or
substantially all of the assets of, or any other similar business
combination with one or more operating businesses or assets, (c) “Insiders” mean all
officers, directors and shareholders of the Company immediately prior to
the IPO; “Insider
Shares” means all Ordinary Shares issued by the Company prior to
the IPO; (d) “Insider
Warrants” means the warrants being sold privately by the Company to
the Existing Shareholders, (e) “IPO Shares” mean all
Ordinary Shares issued in the IPO; (f) “Ordinary Shares” mean
the ordinary shares, no par value, of the Company, (g) “Person” means any individual
or entity, including, but not limited to, all corporations, partnerships
and limited liability companies, (h) “Registration Statement”
means that certain registration statement of the Company on Form F-1, as
amended, relating to the IPO, (i) “Termination Event” means
any failure by the Company to consummate a Business Combination within 24
months from the effective date of its Registration Statement and (j)
“Trust Account”
means that certain trust account in which a substantial amount of the net
proceeds of the IPO are deposited and held for the benefit of the holders
of the IPO Shares, as described in greater detail in the Registration
Statement.
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[Remainder
of Page Intentionally Blank]
IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the date
first written above.
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[Existing
Shareholder], individually
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[INVESTMENT
VEHICLE]
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By:
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Name:
[Existing Shareholder]
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Title:
[Title]
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