SHARE ESCROW AGREEMENT
SHARE
ESCROW AGREEMENT, dated as of _____________, 2008 (“Agreement”) by and among
Spring Creek Acquisition Corp., a Cayman Islands corporation (“Company”), the
undersigned parties listed as Initial Shareholders on the signature page hereto
(collectively, the “Initial Shareholders”) and American Stock Transfer &
Trust Company as escrow agent ( the “Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated ___________,
2008
(“Underwriting Agreement”) with EarlyBirdCapital, Inc., as representative
(“EarlyBird”) of the underwriters named therein (collectively, the
“Underwriters”) in connection with a public offering (the “Public Offering”) by
the Company of Units (as hereafter defined), pursuant to which, among other
matters, the Underwriters have agreed to purchase up to 4,500,000 units
(“Units”) of the Company, each consisting of one ordinary share of the Company,
par value $.0001 per share (the “Ordinary Shares”), and one Warrant (a
“Warrant”). Each Warrant evidences the right of the holder thereof to purchase
one Ordinary Share for $5.50, subject to adjustment, as described in the Warrant
Agreement dated as of _______________, 2008 by and between the Company and
American Stock Transfer & Trust Company as Warrant Agent; and
WHEREAS,
the Initial Shareholders have agreed, as a condition of the Underwriters’
obligation to purchase the Units pursuant to the Underwriting Agreement and
to
offer them to the public, to deposit all of the Ordinary Shares owned by them
prior to the consummation of the Public Offering and the Private Placement,
which amounts are set forth opposite their respective names in Schedule
A
attached
hereto (collectively “Escrow Shares”; provided,
however,
that if
EarlyBird does not exercise the over-allotment option in full, or if greater
than 20% of the public shareholders vote against a Business Combination (as
hereinafter defined) that is consummated, such lesser amount as remains after
the cancellation of up to 168,750 shares of the ordinary shares held in escrow),
in escrow as hereinafter provided; and
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.
NOW,
THEREFORE, 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.
Prior
to the date of the consummation of the Private Placement and the Public
Offering, each of the Initial Shareholders shall deliver to the Escrow Agent
certificates representing his or her respective Escrow Shares to be held and
disbursed subject to the terms and conditions of this Agreement. Each Initial
Shareholder acknowledges and agrees that the certificates representing his
or
her 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 Shares.
The
Escrow Agent shall hold fifty percent (50%) of the Escrow Shares, as set forth
in Schedule
A
until it
receives a certificate signed by the Chief Executive Officer or Chief Financial
Officer of the Company stating that date which is nine (9) months after the
date
on which the Company consummates its initial Business Combination (as
hereinafter defined) has occurred (the “First Escrow Period”). The Escrow Agent
shall hold the remaining fifty percent (50%) of the Escrow Shares, as set forth
in Schedule
A
until it
receives a certificate signed by the Chief Executive Officer or Chief Financial
Officer of the Company stating that the date which is one (1) year after the
date on which the Company consummates its initial Business Combination (the
“Second Escrow Period”) has occurred (the “Second Escrow Shares”). Following the
termination of either the First Escrow Period or the Second Escrow Period (as
applicable), the Escrow Agent shall, upon written instructions from each Initial
Shareholder, disburse each of the Initial Shareholder’s Escrow Shares to such
Initial Shareholder; provided however,
that
if, after the Company consummates a Business Combination, it (or the surviving
entity) subsequently consummates a liquidation, merger, share exchange or other
similar transaction which results in all of its 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 certificate, executed
by
the Chief Executive Officer or Chief Financial Officer of the Company, in form
reasonably acceptable to the Escrow Agent, that such transaction is then being
consummated, release the Escrow Shares to the Initial Shareholders immediately
prior to the consummation of such transaction so that they can similarly
participate; provided further,
that if
the Escrow Agent is notified by the Company that EarlyBird did not exercise
its
overallotment option (as further described in the Registration Statement) or
exercised it in part, an amount such that the remaining Escrow Shares shall
not
exceed 20.0% of the outstanding ordinary shares post-Public Offering (but in
no
event more than 168,750 Escrow Shares) shall be forfeited by the Initial
Shareholders and cancelled by the Company and the Escrow Agent shall promptly
destroy the certificates representing such Escrow Shares; and provided further,
that if
the Escrow Agent is notified by the Company that more than 20% of the public
shareholders voted against a proposed Business Combination, exercised their
conversion rights and the Business Combination is consummated, an amount of
the
Escrow Shares such that the remaining Escrow Shares shall not exceed 23.81%
of
the outstanding ordinary shares post-Business Combination (but in no event
more
than 281,250 Escrow Shares) shall be forfeited by the Initial Shareholders
and
cancelled by the Company and the Escrow Agent shall promptly destroy the
certificates representing such Escrow Shares.
3.2. Duties.
The
Escrow Agent shall have no further duties hereunder after the disbursement
or
destruction of the Escrow Shares in accordance with this Section 3. For purposes
of this Agreement, (i) a “Business Combination” shall mean an acquisition by a
stock exchange, asset acquisition or other similar business combination, or
controlling, through contractual arrangements, of one or more Target Businesses
(as hereinafter defined) having a fair market value of at least 80% of the
Company’s net assets at the time of such acquisition. For purposes of this
Agreement, the term “Target Business” shall mean an operating business that has
its principal operations in the Greater China (as described in the Registration
Statement) region.
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4. Rights
of Initial Shareholders in Escrow Shares.
4.1. Voting
Rights as a Shareholder.
Subject
to the terms of the Insider Letter 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.
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
share 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, no sale, transfer or other disposition may be made of any
or
all of the Escrow Shares except (i) by gift to a member of an Initial
Shareholder’s immediate family or to a trust or other entity, the beneficiary of
which is an Initial Shareholder or a member of an Initial Shareholder’s
immediate family, (ii) by virtue of the laws of descent and distribution upon
death of any Initial Shareholder, or (iii) pursuant to a qualified domestic
relations order; provided,
however,
that
such permissive 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 signed by the Initial Shareholder
transferring the Escrow Shares. During the Escrow Period, no Initial Shareholder
shall pledge or grant a security interest in his, her or its Escrow Shares
or
grant a security interest in his, her or its rights under this
Agreement.
4.4. Insider
Letters.
Each of
the Initial Shareholders has executed a letter agreement with EarlyBird and
the
Company, dated as indicated on Schedule
A
hereto
(“Insider Letter”), and which is filed as an exhibit to the Company’s
Registration Statement on Form S-1, Registration No. 333-147284 with
respect to the Units to be issued in the Public Offering (the “Registration
Statement”), 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.
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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, as set forth on Exhibit
A
hereto.
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 and approved by EarlyBird,
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 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 Company and a majority
of the Initial Shareholders, 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.
6. Miscellaneous.
6.1. Governing
Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties 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 (each, a “New York court”), and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. Each of
the
parties hereby waives any objection to such exclusive jurisdiction and that
such
courts represent an inconvenient forum.
6.2. Third-Party
Beneficiaries.
Each of
the Initial Shareholders hereby acknowledges that EarlyBird is a third-party
beneficiary of this Agreement and this Agreement may not be modified or changed
without the prior written consent of EarlyBird.
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.
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 by private national courier
service, or be mailed, certified or registered mail, return receipt requested,
postage prepaid, and shall be deemed given when so delivered personally or,
if
sent by private national courier service, on the next business day after
delivery to the courier, or, if mailed, two business days after the date of
mailing, as follows:
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If
to the
Company, to:
Xxxxxx
Xxxxx Xxxxxxxxxxx Xxxx.
00X,
Xxxx#0000, Fortune Int’l Building
Xx.
00,
Xxxxx XxXxxXxx Xxxx
Xxx
Xxxx
Xxxxxxxx, Xxxxxxx 100081
People’s
Republic of China
Attn:
Xxxxx Xxxxx-Jee Sha, Chief Executive Officer (Principal Executive
Officer)
If
to an
Initial Shareholder, to his address set forth in Exhibit
A.
and
if to
the Escrow Agent, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [____________________]
A
copy of
any notice sent hereunder shall be sent to (but which shall not constitute
notice):
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
X. Xxxxxxxx, Esq.
and:
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx
X.
Xxxxxxxx
and:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, 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 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(s) specified in the Registration
Statement.
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Signature
page of the Company immediately follows
-
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WITNESS
the execution of this Agreement as of the date first above written.
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By:
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Xxxxx
Xxxxx-Jee Sha,
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Chief
Executive Officer (Principal Executive
Officer)
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Signature
page of Initial Shareholders immediately follows
-
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WITNESS
the execution of this Agreement as of the date first above written.
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INITIAL
SHAREHOLDERS:
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___________________________
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___________________________
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___________________________
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___________________________
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___________________________
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___________________________
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___________________________
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___________________________
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-
Signature
page of Escrow Agent immediately follows
-
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WITNESS
the execution of this Agreement as of the date first above written.
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&
TRUST COMPANY, as Escrow Agent
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By:
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Name:
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Title:
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SCHEDULE
A
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First
Escrow
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||||||||||
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Name
and Address of
Initial
Shareholder
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Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
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|||||||
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Second
Escrow
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Name
and Address of
Initial
Shareholder
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Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
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EXHIBIT
A
Escrow
Agent Fees
[To
be
determined]
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