SECURITIES ESCROW AGREEMENT
Exhibit
10.10
SECURITIES
ESCROW AGREEMENT, dated as of ___________,
2008
(“Agreement”), by and among XXXXXXXXX ASIA ACQUISITION CORP., a company
organized under the laws of the Cayman Islands (“Company”), XXXX XXXX, XXXXXX X.
EU, XXXXXXX X. XXXXXX and AEX ENTERPRISES LIMITED (collectively “Initial
Shareholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY (“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting
Agreement, dated ___________,
2008
(“Underwriting Agreement”), with Broadband Capital Management, Inc.
(“Broadband”) acting as representative of the several underwriters
(collectively, the “Underwriters”), pursuant to which, among other matters, the
Underwriters have agreed to purchase 4,000,000 units (not including the
underwriters’ overallotment option) (“Units”) of the Company. Each Unit consists
of one of the Company’s ordinary share, $0.001 par value (each an “Ordinary
Share”), and one warrant (“Warrant”), each Warrant to purchase one Ordinary
Share, all as more fully described in the Company’s definitive Prospectus, dated
_________, 2008
(“Prospectus”) comprising part of the Company’s Registration Statement on Form
S-1 (File No. 333-146147 ) under the Securities Act of 1933, as amended
(together, the “Registration Statement”), which was declared effective on
___________,
2008
(“Effective Date”).
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 their Ordinary Shares (the “Escrow
Shares”) and warrants exercisable for Ordinary Shares (the “Escrow Warrants”;
and collectively with the Escrow Shares, the “Escrow Securities”), as set forth
opposite their respective names in Exhibit
A attached
hereto, in escrow as hereinafter provided.
WHEREAS,
the Company and the Initial Shareholders desire that the Escrow Agent accept
the
Escrow Securities, 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 Securities. On or before the Effective Date, each of the Initial
Shareholders shall deliver to the Escrow Agent certificates representing his
or
her respective Escrow Securities, to be held and disbursed subject to the terms
and conditions of this Agreement. Each Initial Shareholder acknowledges and
agrees that the certificate(s) representing his or her Escrow Securities will
bear a legend to reflect the deposit of such Escrow Securities under this
Agreement.
3. Disbursement
of the Escrow Securities. The Escrow Agent shall (i) hold the Escrow Securities
until the date that is twelve (12) months following consummation of a Business
Combination, as defined in the Registration Statement and (ii) hold the Escrow
Warrants until the consummation of a Business Combination. The time that the
Escrow Warrants or the Escrow Shares are held in escrow pursuant to this
Agreement is referred to herein as the “Escrow Period”. On the expiration of the
applicable Escrow Period, the Escrow Agent shall, upon written instructions
from
each Initial Shareholder, disburse each of the Initial Shareholder’s Escrow
Securities 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 Securities
and,
provided further, that if,
after
the Company consummates a Business Combination , it (or the surviving entity)
subsequently
consummates a liquidation, merger, stock exchange or other similar transaction
which results in all of its shareholders having the right to exchange their
Ordinary Shares or warrants for cash, securities or other property, then the
Escrow Agent will, upon receipt of a notice, executed by the Chairman, Chief
Executive Officer or Chief Financial Officer of the Company, in form reasonably
acceptable to the Escrow Agent, certifying that such transaction is then being
consummated, release the Escrow Securities to the Initial Shareholders so that
they can similarly participate. The Escrow Agent shall have no further duties
hereunder after the disbursement or destruction of the Escrow Securities in
accordance with this Section 3.
4. Rights
of
Initial Shareholders in Escrow Securities.
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 with respect to the Escrow
Shares, including, without limitation, the right to vote such shares.
4.2 Dividends
and Other Distributions in Respect of the Escrow Securities. During
the Escrow Period, all dividends payable in cash with respect to the Escrow
Securities shall be paid to the Initial Shareholders, but all dividends payable
in securities 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 Securities” shall be deemed to include the
Non-Cash Dividends distributed thereon, if any.
4.3 Restrictions
on Transfer.
Except
as set forth in Section 3, during the Escrow Period, no sale, transfer or other
disposition may be made of any or all of the Escrow Securities except (i) by
gift to an affiliate or a member of 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 (as defined below) signed by the Initial Shareholder
transferring the Escrow Securities. During the Escrow Period, the Initial
Shareholders shall not pledge or grant a security interest in the Escrow
Securities or grant a security interest in their rights under this Agreement.
4.4 Insider
Letters.
Each of
the Initial Shareholders has executed a letter agreement with Broadband and
the
Company, dated as of the Effective Date, and 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.
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 Securities 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 Securities or it may deposit the Escrow Securities with the clerk
of
any appropriate court or it may retain the Escrow Securities 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
Securities 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 B 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 Broadband,
the
Escrow Securities 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 Securities 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.
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, 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 the Underwriters, including,
without limitation, Broadband, are third party beneficiaries of this Agreement
and this Agreement may not be modified or changed without the prior written
consent of Broadband.
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 days after the date of mailing,
as
follows:
If
to the
Company, to:
Xxxxxxxxx
Asia Acquisition Corporation
00/X
Xxxxx 0
Xxx
Xxxxx
Xxxxx
00
Xxxxxx
Xxxx Xxxxxxx
Xxxx
Xxxx
Attn:
Xxxx Xxxx, Chief Executive Officer
Fax
No.:
[
]
If
to a
Shareholder, to his or her address set forth in Exhibit A.
and
if to
the Escrow Agent, to:
Continental Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
[
]
Fax
No.:
[
]
A
copy of
any notice sent hereunder shall be sent to:
Ellenoff
Xxxxxxxx & Schole, LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
and
Broadband
Capital Management, Inc.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
T.
Xxxxx Xxxxxx
and
Xxxx
& Xxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, 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 Prospectus.
6.8 Counterparts.
This
Agreement may be executed in several counterparts each one of which shall
constitute an original and may be delivered by facsimile transmission and
together shall constitute one instrument.
6.9 Waiver.
Notwithstanding anything herein to the contrary, the Escrow Agent hereby waives
any and all right, title, interest or claim of any kind (“Claim”) in or to any
distribution of the Trust Account, and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account
for any reason whatsoever.
[remainder
of document continued on next page]
WITNESS
the execution of this Agreement as of the date first above written.
|
XXXXXXXXX
ASIA ACQUISITION CORP.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
| INITIAL SHAREHOLDERS: | ||
| |
||
|
Xxxx
Xxxx
|
||
|
Xxxxxx X. Eu |
||
|
XXXXXX
FAMILY IRREVOCABLE TRUST
|
||
| |
|
|
| By: | ||
|
Xxxxxxx
X. Xxxxxx, Trustee
|
||
|
AEX
ENTERPRISES LIMITED
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
X.X.
XXXXXXXXX + CO., LLC
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXXXX
1980 REVOCABLE TRUST
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
XXXX
VENTURES LLC
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
MARBELLA
CAPITAL PARTNERS LTD.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
Continental
Stock Transfer & Trust Company
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
A
|
Name
and Address of Initial Shareholders
|
Number
of Escrow Shares
|
Number
of Escrow Warrants
|
|||||
|
Xxxx
Xxxx
[address]
|
333,333
|
0
|
|||||
|
Xxxxxx
X. Eu
[address]
|
333,334
|
0
|
|||||
|
Xxxxxx
Family Irrevocable Trust
[address]
|
333,333
|
0
|
|||||
|
AEX
Enterprises Limited
[address]
|
0
|
300,000
|
|||||
|
XX
Xxxxxxxxx + Co., LLC
[address]
|
0
|
150,000
|
|||||
|
Xxxxxxxxx
1980 Revocable Trust
[address]
|
0
|
300,000
|
|||||
|
Xxxx
Ventures LLC
[address]
|
0
|
300,000
|
|||||
|
Marbella
Capital Partners Ltd.
[address]
|
0
|
100,000
|
|||||
EXHIBIT B
Escrow
Agent Fees
$1,800
annually for acting agent escrow fee.
Initial
acceptance fee and first year agent fee to be paid at closing.
