Contract
Exhibit
10.3
Exhibit
B to Stock Purchase Agreement
ESCROW
AGREEMENT (“Agreement”) dated [Closing Date] by and among SPRING FORTUNE
INVESTMENT LTD, a British Virgin Islands corporation (“Shareholder”), CS CHINA
ACQUISITION CORP. (“Purchaser”), and Continental Stock Transfer & Trust
Company, as escrow agent (the “Escrow Agent”).
Shareholder,
Purchaser and Asia Gaming & Resort, Ltd., a Hong Kong corporation and
subsidiary of Shareholder (“AGRL”), are the parties to a Stock Purchase
Agreement dated as of September __, 2009 (the “Purchase Agreement”) pursuant to
which Purchaser has purchased from Shareholder all of the outstanding capital
stock of AGRL. Pursuant to the Purchase Agreement, Purchaser is to be
indemnified in certain respects. The parties desire to establish an
escrow fund as collateral security for the indemnification obligations under the
Purchase Agreement that is to consist of 9,315,0001 shares of Purchaser Stock
to be deposited by Shareholder (the “Escrow Shares”). Capitalized
terms used herein that are not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
The
parties agree as follows:
1. (a) Concurrently
with the execution hereof, Shareholder is delivering to the Escrow Agent, to be
held in escrow pursuant to the terms of this Agreement, share certificates
issued in the name of Shareholder representing the Escrow Shares, together with
five (5) share transfer instruments separate from certificate executed in blank
by Shareholder, with medallion signature guaranties. The Shares of
Purchaser Stock represented by the share certificates so delivered by
Shareholder to the Escrow Agent are herein referred to in the aggregate as the
“Escrow Fund.”
(b) The
Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and
disburse the Escrow Fund pursuant to the terms and conditions
hereof. It shall treat the Escrow Fund as a trust fund in accordance
with the terms of this Agreement and not as the property of Purchaser. The
Escrow Agent’s duties hereunder shall terminate upon its distribution of the
entire Escrow Fund in accordance with this Agreement.
(c) Except
as herein provided, Shareholder and all Permitted Transferees (as hereinafter
defined and, together with Shareholder, the “Owners”) shall retain all of their
rights as shareholders of Purchaser with respect to the Purchaser Stock
constituting the Escrow Fund during the period any portion of the Escrow Fund is
held by the Escrow Agent (the “Escrow Period”), including, without limitation,
the right to vote its Purchaser Stock included in the Escrow Fund.
1 This
number is 90% of the 10,350,000 shares that will be issued at
Closing.
(d) During
the Escrow Period, all dividends payable in cash with respect to the Purchaser
Stock included in the Escrow Fund shall be paid to the Owners, but all dividends
payable in stock 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 Fund” shall be deemed to
include the Non-Cash Dividends distributed thereon, if any.
(e) During
the Escrow Period, no sale, transfer or other disposition may be made of any or
all of the Purchaser Stock in the Escrow Fund except (i) to a “Permitted
Transferee” (as hereinafter defined), (ii) by virtue of the laws of descent and
distribution upon death of any Owner, 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. As used in this
Agreement, the term “Permitted Transferee” shall include an entity in which (A)
Shareholder beneficially owns 100% of such entity’s voting and non-voting equity
securities, or (B) Shareholder is a general partner and in which Shareholder
beneficially owns 100% of all capital accounts of such entity. In
connection with and as a condition to each permitted transfer, the Permitted
Transferee shall deliver to the Escrow Agent an assignment separate from
certificate executed by Shareholder, with medallion signature guaranty, or where
applicable, an order of a court of competent jurisdiction, evidencing the
transfer of shares to the Permitted Transferee, together with two (2)
assignments separate from certificate executed in blank by the Permitted
Transferee, with medallion signature guaranties, with respect to the shares
transferred to the Permitted Transferee. Upon receipt of such
documents, the Escrow Agent shall deliver to Purchaser’s transfer agent the
original share certificate out of which the assigned shares are to be
transferred, together with the executed share transfer instrument separate from
certificate executed by Shareholder, or a copy of the applicable court order,
and shall request that Purchaser issue new certificates representing (x) the
number of shares, if any, that continue to be owned by the transferor, and (y)
the number of shares owned by the Permitted Transferee as the result of such
transfer. Shareholder, the Purchaser and the Permitted Transferee
shall cooperate in all respects with the Escrow Agent in documenting each such
transfer and in effectuating the result intended to be accomplished
thereby. During the Escrow Period, no Owner shall pledge or grant a
security interest in such Owner’s Purchaser Stock included in the Escrow Fund or
grant a security interest in such Owner’s rights under this
Agreement.
2. Indemnification Claims
Procedure.
(a) Purchaser,
acting through the current or former members of Purchaser’s Board of Directors
who have been appointed by Purchaser to take all necessary actions and make all
decisions on behalf of Purchaser with respect to its rights to indemnification
under Article VII of the Purchase Agreement (the “Committee”), may make a claim
for indemnification pursuant to the Purchase Agreement (“Indemnification Claim”)
against the Escrow Shares in the Escrow Fund by giving notice (a “Notice”) to
Shareholder (with a copy to the Escrow Agent) specifying (i) the covenant,
representation, warranty, agreement, undertaking or obligation contained in the
Purchase Agreement which it asserts has been breached or otherwise entitles
Purchaser to indemnification and (ii) in reasonable detail, the nature and
dollar amount of any Indemnification Claim. The Committee also shall
deliver to the Escrow Agent (with a copy to Shareholder), concurrently with its
delivery to the Escrow Agent of the Notice, a certification as to the date on
which the Notice was delivered to Shareholder.
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(b) If
Shareholder shall give a notice to the Committee (with a copy to the Escrow
Agent) (a “Counter Notice”), within 30 days following the date of receipt (as
specified in the Committee’s certification) by Shareholder of a copy of the
Notice, disputing whether the Indemnification Claim is indemnifiable under the
Purchase Agreement, the Committee and Shareholder shall attempt to resolve such
dispute by voluntary settlement as provided in Section 2(c) below. If no Counter
Notice with respect to an Indemnification Claim is received by the Escrow Agent
from Shareholder within such 30-day period, the Indemnification Claim shall be
deemed to be an Established Claim (as hereinafter defined) for purposes of this
Agreement.
(c) If
Shareholder delivers a Counter Notice to the Escrow Agent, the Committee and
Shareholder shall, during the period of 60 days following the delivery of such
Counter Notice or such greater period of time as the parties may agree to in
writing (with a copy to the Escrow Agent), attempt to resolve the dispute with
respect to which the Counter Notice was given. If the Committee and
Shareholder shall reach a settlement with respect to any such dispute, they
shall jointly deliver written notice of such settlement to the Escrow Agent
specifying the terms thereof. If the Committee and Shareholder shall
be unable to reach a settlement with respect to a dispute, such dispute shall be
resolved by arbitration pursuant to Section 2(d) below.
(d) If
the Committee and Shareholder cannot resolve a dispute prior to expiration of
the 60-day period referred to in Section 2(c) above (or such longer period as
the parties may have agreed to in writing), then such dispute shall be submitted
(and either party may submit such dispute) to arbitration as set forth in
Section 7 hereof.
(e) As
used in this Agreement, “Established Claim” means any (i) Indemnification Claim
deemed established pursuant to the last sentence of Section 2(b) above, (ii)
Indemnification Claim resolved in favor of Purchaser by settlement pursuant to
Section 2(c) above, resulting in a dollar award to Purchaser, (iii)
Indemnification Claim established by the decision of an arbitrator pursuant to
Section 2(d) above, resulting in a dollar award to Purchaser, (iv) Third Party
Claim that has been sustained by a final determination (after exhaustion of any
appeals) of a court of competent jurisdiction, or (v) Third Party Claim that the
Committee and Shareholder have jointly notified the Escrow Agent has been
settled in accordance with the provisions of the Purchase
Agreement.
(f) (i) Promptly
after an Indemnification Claim becomes an Established Claim, the Committee and
Shareholder shall jointly deliver a notice to the Escrow Agent (a “Joint
Notice”) directing the Escrow Agent to pay to Purchaser, and the Escrow Agent
promptly shall pay to Purchaser, an amount equal to the aggregate dollar amount
of the Established Claim (or, if at such time there remains in the Escrow Fund
less than the full amount so payable, the full amount remaining in the Escrow
Fund).
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(ii) Payment
of an Established Claim shall be made from Escrow Shares pro rata from the
account maintained on behalf of each Owner. For purposes of each
payment, such shares shall be valued at the “Fair Market Value” (as defined
below). However, in no event shall the Escrow Agent be required to
calculate Fair Market Value or make a determination of the number of shares to
be delivered to Purchaser in satisfaction of any Established Claim; rather, such
calculation shall be included in and made part of the Joint
Notice. The Escrow Agent shall transfer to Purchaser out of the
Escrow Fund that number of Purchaser Stock necessary to satisfy each Established
Claim, as set out in the Joint Notice. Any dispute between the
Committee and Shareholder concerning the calculation of Fair Market Value or the
number of shares necessary to satisfy any Established Claim, or any other
dispute regarding a Joint Notice, shall be resolved between the Committee and
Shareholder in accordance with the procedures specified in Section 2(d) above,
and shall not involve the Escrow Agent. Each transfer of shares
in satisfaction of an Established Claim shall be made by the Escrow Agent
delivering to Purchaser one or more share certificates held in each Owner’s
account evidencing not less than such Owner’s pro rata portion of the aggregate
number of shares specified in the Joint Notice, together with share transfer
instruments separate from certificate executed in blank by such Owner and
completed by the Escrow Agent in accordance with instructions included in the
Joint Notice. Upon receipt of the share certificates and share
transfer assignments, Purchaser shall deliver to the Escrow Agent new
certificates representing the number of shares owned by each Owner after such
payment. The parties hereto (other than the Escrow Agent) agree that
the foregoing right to make payments of Established Claims in Purchaser Stock
may be made notwithstanding any other agreements restricting or limiting the
ability of any Owner to sell any shares of Purchaser Stock or
otherwise. The Committee and Shareholder shall be required to
exercise utmost good faith in all matters relating to the preparation and
delivery of each Joint Notice. As used herein, “Fair Market Value”
means the average reported last sale price for the Purchaser Stock for the ten
trading days ending on the last trading day prior to (x) the day the Established
Claim is paid with respect to Indemnification Claims paid on or before the
thirtieth day after Purchaser files its Annual Report on Form 20-F for the
fiscal year ending December 31, 2010 (the “Escrow Termination Date”), and (y)
the Escrow Termination Date with respect to shares constituting the Pending
Claims Reserve (as hereinafter defined) on the Escrow Termination
Date.
(iii) Notwithstanding
anything herein to the contrary, at such time as an Indemnification Claim has
become an Established Claim, Shareholder shall have the right to substitute for
the Escrow Shares that otherwise would be paid in satisfaction of such claim
(the “Claim Shares”), cash in an amount equal to the Fair Market Value of the
Claim Shares (“Substituted Cash”). In such event (i) the Joint Notice
shall include a statement describing the substitution of Substituted Cash for
the Claim Shares, and (ii) substantially contemporaneously with the delivery of
such Joint Notice, Shareholder shall cause currently available funds to be
delivered to the Escrow Agent in an amount equal to the Substituted
Cash. Upon receipt of such Joint Notice and Substituted Cash, the
Escrow Agent shall (y) in payment of the Established Claim described in the
Joint Notice, deliver the Substituted Cash to Shareholder in lieu of the Claim
Shares, and (z) cause the Claim Shares to be returned to
Shareholder.
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(g) On
the date that is one (1) year after the date of this Agreement, the Escrow
Agent, upon receipt of written notice from Shareholder to such effect, a copy of
which shall also be delivered to the Committee, shall distribute and deliver to
each Owner certificates representing Escrow Shares placed in such Owner’s
account in the Escrow Fund less that number of shares in such Owner’s account
equal to the sum of (i) the number of shares applied in satisfaction of
Indemnification Claims made prior to that date, (ii) the number of shares in the
Pending Claims Reserve allocated to such Owner’s account, as provided in the
following sentence, and (iii) 1,552,500 shares. If, at such time,
there are any Indemnification Claims with respect to which Notices have been
received but which have not been resolved pursuant to Section 2 hereof or in
respect of which the Escrow Agent has not been notified of, and received a copy
of, a final determination (after exhaustion of any appeals) by a court of
competent jurisdiction, as the case may be (in either case, “Pending Claims”),
and which, if resolved or finally determined in favor of Purchaser, would result
in a payment to Purchaser, the Escrow Agent shall retain in the Pending Claims
Reserve that number of shares of Purchaser Stock having a Fair Market Value
equal to the dollar amount for which indemnification is sought in such
Indemnification Claim, allocated pro rata from the account maintained on behalf
of each Owner. The Committee shall certify to the Escrow Agent the
Fair Market Value to be used in calculating the Pending Claims Reserve and the
number of Purchaser Stock to be retained therefor. Thereafter, if any
Pending Claim becomes an Established Claim, the Committee and Shareholder shall
deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to deliver
to Purchaser the number of shares in the Pending Claims Reserve in respect
thereof determined in accordance with Section 2(f) above and to deliver to each
Owner the remaining shares in the Pending Claims Reserve allocated to such
Pending Claim, all as specified in a Joint Notice. If any Pending Claim is
resolved against Purchaser, the Committee and Shareholder shall deliver to the
Escrow Agent a Joint Notice directing the Escrow Agent to pay to each Owner its
pro rata portion of the number of shares allocated to such Pending Claim in the
Pending Claims Reserve.
(h) On
the first Business Day after the Escrow Termination Date, upon receipt of a
Joint Notice, the Escrow Agent shall distribute and deliver to each Owner
certificates representing Escrow Shares placed in such Owner’s account in the
Escrow Fund less that number of shares in such Owner’s account equal to the sum
of (i) the number of shares applied in satisfaction of Indemnification Claims
made prior to that date and (ii) the number of shares in the Pending Claims
Reserve allocated to such Owner’s account, as provided in the following
sentence. If, at such time, there are any Pending Claims, and which,
if resolved or finally determined in favor of Purchaser, would result in a
payment to Purchaser, the Escrow Agent shall retain in the Pending Claims
Reserve that number of Purchaser Stock having a Fair Market Value equal to the
dollar amount for which indemnification is sought in such Indemnification Claim,
allocated pro rata from the account maintained on behalf of each
Owner. The Committee shall certify to the Escrow Agent the Fair
Market Value to be used in calculating the Pending Claims Reserve and the number
of Purchaser Stock to be retained therefor. Thereafter, if any
Pending Claim becomes an Established Claim, the Committee and Shareholder shall
deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to deliver
to Purchaser the number of shares in the Pending Claims Reserve in respect
thereof determined in accordance with Section 2(f) above and to deliver to each
Owner the remaining shares in the Pending Claims Reserve allocated to such
Pending Claim, all as specified in a Joint Notice. If any Pending Claim is
resolved against Purchaser, the Committee and Shareholder shall deliver to the
Escrow Agent a Joint Notice directing the Escrow Agent to pay to each Owner its
pro rata portion of the number of shares allocated to such Pending Claim in the
Pending Claims Reserve.
(i) As
used herein, the “Pending Claims Reserve” shall mean, at the time any such
determination is made, that number of Escrow Shares in the Escrow Fund having a
Fair Market Value equal to the sum of the aggregate dollar amounts claimed to be
due with respect to all Pending Claims (as shown in the Notices of such
Claims).
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3. The
Escrow Agent, the Committee and Shareholder shall cooperate in all respects with
one another in the calculation of any amounts determined to be payable to
Purchaser, Shareholder and the Owners in accordance with this Agreement and in
implementing the procedures necessary to effect such payments.
4. (a) The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein. It is understood that the Escrow Agent is not a trustee or
fiduciary and is acting hereunder merely in a ministerial capacity.
(b) 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.
(c) The
Escrow Agent’s sole responsibility upon receipt of any notice requiring any
payment to Shareholder pursuant to the terms of this Agreement or, if such
notice is disputed by the Committee or Shareholder, the settlement with respect
to any such dispute, whether by virtue of joint resolution, arbitration or
determination of a court of competent jurisdiction, is to pay to Purchaser the
amount specified in such notice, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
(d) The
Escrow Agent shall not be liable for any action taken by it in good faith and
believed by it to be authorized or within the rights or powers conferred upon it
by this Agreement, and may consult with counsel of its own choice and shall have
full and complete authorization and indemnification under Section 4(g), below,
for any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
(e) 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 the Escrow Fund to a successor escrow agent appointed jointly by the
Committee and Shareholder. 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 Fund with any court it reasonably deems
appropriate.
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(f) The
Escrow Agent shall be indemnified and held harmless by Shareholder 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 Fund 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 the United States District Court for the Southern
District of New York.
(g) The
Escrow Agent shall be entitled to reasonable compensation from Shareholder for
all services rendered by it hereunder. The Escrow Agent shall also be
entitled to reimbursement from Shareholder 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.
(h) From
time to time on and after the date hereof, the Committee and Shareholder 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.
(i) 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. This
Agreement expressly sets forth all the duties of the Escrow Agent with respect
to any and all matters pertinent hereto. No implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The Escrow Agent shall not
be bound by the provisions of any agreement among the parties hereto except this
Agreement and shall have no duty to inquire into the terms and conditions of any
agreement made or entered into in connection with this Agreement, including,
without limitation, the Purchase Agreement.
6. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives shall be
governed by and construed in accordance with the law of New York applicable to
contracts made and to be performed therein. This Agreement cannot be
changed or terminated except by a writing signed by the Committee, Shareholder
and the Escrow Agent.
7. All
disputes arising under this Agreement between the Committee and Shareholder,
including a dispute arising from a party’s failure or refusal to sign a Joint
Notice, shall be submitted to arbitration to the American Arbitration
Association in New York City. The Committee and Shareholder each hereby consents
to the exclusive jurisdiction of the federal and state courts sitting in New
York County, New York, with respect to any claim or controversy arising out of
this Agreement. Service of process in any action or proceeding brought against
the Committee or Shareholder in respect of any such claim or controversy may be
made upon it by registered mail, postage prepaid, return receipt requested, at
the address specified in Section 8, with copies delivered by nationally
recognized overnight carrier to Xxxxxxxx Xxxxxx, The Chrysler Building, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention: Xxxxx Xxxx
Xxxxxx, Esq., and to [Shareholder to specify name and address of party to be
copied on its behalf].
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8. All
notices and other communications under this Agreement shall be in writing and
shall be deemed given if given by hand or delivered by nationally recognized
overnight carrier, or if given by telecopier and confirmed by mail (registered
or certified mail, postage prepaid, return receipt requested), to the respective
parties as follows:
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A.
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If
to the Committee, to it at:
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with a
copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention: Xxxxx
Xxxx Xxxxxx, Esq.
Telecopier
No.: 000-000-0000
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B.
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If
to Shareholder, to it at:
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[To
follow]
with a
copy to:
[To
follow]
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C.
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If
to the Escrow Agent, to it at:
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Continental
Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
Attention: Xxxxxx X.
Xxxxxx
Telecopier No.:
or to
such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
9. (a) If
this Agreement requires a party to deliver any notice or other document, and
such party refuses to do so, the matter shall be submitted to arbitration as
provided for herein.
(b) All
notices delivered to the Escrow Agent shall refer to the provision of this
Agreement under which such notice is being delivered and, if applicable, shall
clearly specify the aggregate dollar amount due and payable to
Purchaser.
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(c) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument and all of which together shall constitute a
single agreement.
IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement on
the date first above written.
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SPRING
FORTUNE INVESTMENT LTD
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By:
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Name:
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Title:
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ESCROW
AGENT:
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CONTINENTAL
STOCK TRANSFER
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&
TRUST COMPANY
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By:
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Name:
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Title:
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