SECURITIES ESCROW AGREEMENT
Exhibit
10.8
SHARE
ESCROW AGREEMENT, dated as of ,
2007
(“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
stockholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY (“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting
Agreement, dated ,
2007
(“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
,2007
(“Prospectus”) comprising part of the Company’s Registration Statement on Form
F-1 (File No.
) under
the Securities Act of 1933, as amended (together, the “Registration Statement”),
which was declared effective on ,
2007
(“Effective Date”).
WHEREAS,
the Initial stockholders 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 Stockholders 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 Stockholders 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
Stockholders 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 Stockholder acknowledges that
the
certificate(s) representing his or her Escrow Securities are legended to
reflect
the deposit of such Escrow Shares under this Agreement.
3. Disbursement
of the Escrow Securities. The Escrow Agent shall (i) hold the Escrow Shares
until one year after the consummation of a business combination, as described
in
the Registration Statement (the “Business Combination”) 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 Stockholder, disburse each of the Initial Stockholder’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 stockholders having the right to exchange their
Ordinary Shares or warrants for cash, securities or other property, then
the
Escrow Agent will, upon consummation of such transaction, release the Escrow
Securities to the Initial Stockholders 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 Stockholders in Escrow Securities.
4.1 Voting
Rights as a Stockholder.
Subject
to the terms of the Insider Letter described in Section 4.4 hereof and except
as
herein provided, the Initial Stockholders shall retain all of their rights
as
stockholders 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 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
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 Shares” 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 Stockholder’s immediate family or to
a trust or other entity, the beneficiary of which is an Initial Stockholder
or a
member of an Initial Stockholder’s immediate family, (ii) by virtue of the laws
of descent and distribution upon death of any Initial Stockholder, 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 Stockholder
transferring the Escrow Shares. During the Escrow Period, the Initial
Stockholders 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 Stockholders has executed a letter agreement with Broadband and
the
Company, dated 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 Stockholder 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 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
Stockholders 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 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.
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 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
Stockholder, 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, Esq.
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:[ ]
and
Loeb
& Loeb 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.
[reminder
of document continued on next page]
WITNESS
the execution of this Agreement as of the date first above written.
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XXXXXXXXX
ASIA ACQUISITION CORP.
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By:
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Name:
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Title:
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| INITIAL SHAREHOLDERS: | |
| Xxxx Xxxx | |
| Xxxxxx X. Eu | |
| Xxxxxxx X. Xxxxxx | |
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AEX
ENTERPRISES LIMITED
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By:
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Name:
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Title:
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Continental
Stock Transfer & Trust Company
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By:
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Name:
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Title:
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EXHIBIT
A
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Name
and Address of Initial Shareholders
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Number
of Escrow
Shares
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Number
of Escrow
Warrants
|
||
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Xxxx
Xxxx
[address]
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333,333
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0
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||
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Xxxxxx
X. Eu
[address]
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333,334
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0
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Xxxxxxx
X. Xxxxxx
[address]
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333,333
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0
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||
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AEX
Enterprises Limited
[address]
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0
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750,000
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