STOCK ESCROW AGREEMENT
Exhibit
10.7
STOCK
ESCROW AGREEMENT, dated as of _________________, 2008 (“Agreement”), by and
among NEW ASIA PARTNERS CHINA CORPORATION, a Delaware corporation (“Company”),
NEW ASIA PARTNERS LIMITED and CAPITAL TEN PARTNERS, LLC (collectively, the
“Initial Stockholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a
New York corporation (“Escrow Agent”).
WHEREAS,
each Unit of the Company (“Unit”) consists of one share of the Company’s common
stock, par value $.0001 per share (“Common Stock”), and one warrant, each
warrant to purchase one share of Common Stock, all as more fully described
in
the Company’s final Prospectus, dated _______________, 2008 (“Prospectus”)
comprising part of the Company’s Registration Statement on Form S-1 (File No.
333-147741) under the Securities Act of 1933, as amended (“Registration
Statement”), declared effective on _______________, 2008 (“Effective
Date”).
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit their shares of Common Stock of the Company, as set forth opposite
their
respective names in Exhibit A attached hereto (collectively “Escrow Shares”), in
escrow as hereinafter provided.
WHEREAS,
the Company and the Initial Stockholders desire that the Escrow Agent accept
the
Escrow Shares, 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 Shares.
On or
before the Effective Date, each of the Initial Stockholders shall deliver to
the
Escrow Agent certificates representing his, her or its respective Escrow Shares,
to be held and disbursed subject to the terms and conditions of this Agreement.
Each Initial Stockholder acknowledges that the certificate representing his,
her
or its Escrow Shares is legended to reflect the deposit of such Escrow Shares
under this Agreement.
3.
Disbursement
of the Escrow Shares.
3.1
The Escrow Agent shall hold the Escrow Shares until one year after the
consummation of a Business Combination (as defined in the Registration
Statement) (“Escrow Period”), on which date it shall, upon written instructions
from the Company’s chief executive officer or general counsel or from such
Initial Stockholder, disburse each of the Initial Stockholder’s Escrow Shares
(and any applicable stock power) to such Initial Stockholder; 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 Shares; provided, however, that if the Underwriters
(as
defined in the Registration Statement) do not exercise their over-allotment
option to purchase an additional 262,500 Units of the Company (as described
in
the Prospectus), the Initial Stockholders agree that the Escrow Agent shall
return to the Company for cancellation, at no cost, the number of Escrow Shares
held by each Initial Stockholder equal to the product obtained by multiplying
(i) the number of Escrow Shares held by such Initial Stockholder on the
Effective Date by (ii) a fraction, (x) the numerator of which is 65,625, and
(y)
the denominator of which is 503,125 and multiplied by (iii) an amount equal
to (x) the difference between 262,500 and the number of units purchased by
the
Underwriters upon the exercise of the over-allotment option, divided by (y)
262,500; provided further, however, that if, after the Company consummates
a
Business Combination (as such term is defined in the Registration Statement),
it
(or the surviving entity) subsequently consummates a liquidation, merger, stock
exchange or other similar transaction which results in all of the stockholders
of such entity having the right to exchange their shares of Common Stock for
cash, securities or other property, then the Escrow Agent will, upon receipt
of
a certificate, executed by the Chairman of the Board, Chief Executive Officer,
President or other authorized officer of the Company, in form reasonably
acceptable to the Escrow Agent, that such transaction is then being consummated
or such conditions have been achieved, as applicable, release the Escrow Shares
to the Initial Stockholders. The Escrow Agent shall have no further duties
hereunder after the disbursement or destruction of the Escrow Shares in
accordance with this Section 3.
3.2
If
the
Company consummates a Business Combination in which holders of more than 20%
of
the shares of Common Stock sold in the IPO exercise the right to redeem their
shares for cash (as described more fully in the Prospectus), the Escrow Agent
shall, upon receipt of written instructions from the Company, return to the
Company for cancellation the number of Escrow Shares which results in the
Initial Shareholders collectively owning no more than 23.81% of the Company’s outstanding
shares of Common Stock immediately prior to the consummation of such Business
Combination (without giving effect to any shares of Common Stock that might
be
issued in connection with the Business Combination). Such instructions shall
set
forth both the number of shares of Common Stock being redeemed for cash and
the
number of Escrow Shares to be delivered to the Company for
cancellation.
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4.
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Rights
of Initial Stockholders in Escrow Shares.
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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, 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 Stockholders, 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 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, pledge, hypothecation or other disposition
may be made of any or all of the Escrow Shares except (i) to an entity’s members
or owners in proportion to their membership interest or upon its liquidation,
(ii) by gift to a member of an Initial Stockholder’s immediate family or to a
trust, the beneficiary of which is an Initial Stockholder or a member of an
Initial Stockholder’s immediate family, (iii) by virtue of the laws of descent
and distribution upon death of any Initial Stockholder, (iv) pursuant to a
qualified domestic relations order or (v) by private sales made at or prior
to
the consummation of a Business Combination at prices no greater than the price
which the Initial Stockholder paid for the Escrow Shares; provided, however,
that such 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 Stockholder transferring the Escrow
Shares.
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4.4
Insider
Letters.
Each of
the Initial Stockholders has executed a letter agreement with Maxim Group LLC
and the Company, dated as indicated on Exhibit A hereto, 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.
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5.
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Concerning
the Escrow Agent.
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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 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.
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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, 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.
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6.
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Miscellaneous.
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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, without giving
effect to conflicts of law principles that would result in the application
of
the substantive laws of another jurisdiction (whether of the State of New York
or any other jurisdiction that would cause the application of the laws of any
jurisdiction other than the State of New York). The Company 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. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenience forum. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 6.6 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon
the
Company in any action, proceeding or claim.
6.2
Third
Party Beneficiaries.
Each of
the Initial Stockholders 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 Maxim Group LLC.
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. It may be executed in several original or facsimile counterparts,
each one of which shall constitute an original, and together shall constitute
but one instrument
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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 be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two days after the date of mailing, as
follows:
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If
to the Company, to:
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NEW
ASIA PARTNERS CHINA CORPORATION
0000-00
Xxxxx Insurance Building
166
Lu Jia Zui Xxxx Xx
Xxxxxx,
Xxxxxxxx, 000000, Xxxxx
Attn:
Chief Executive Officer
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If
to a Stockholder, to his address set forth in Exhibit A.
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and
if to the Escrow Agent, to:
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Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx
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A
copy of any notice sent hereunder shall be sent to:
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Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
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and:
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Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
[___]
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and:
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Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
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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 the 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.
-Signature
Page Follows-
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WITNESS
the execution of this Agreement as of the date first above written.
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NEW
ASIA PARTNERS CHINA
CORPORATION
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By:
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Name:
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Title:
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INITIAL
STOCKHOLDERS:
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NEW
ASIA PARTNERS LIMITED
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By:
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Name:
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Title:
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CAPITAL
TEN PARTNERS, LLC
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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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7
EXHIBIT
A
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Stockholder
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Number of Shares
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Stock Certificate
Number
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Date of
Insider Letter
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New Asia
Partners Limited
0000-00
Xxxxx Insurance Building
166
Lu Jia Zui Xxxx Xx
Xxxxxx,
Xxxxxxxx, 000000, Xxxxx
Attn:
Xxxxxx Xxxxxx
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352,188
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[__]
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_______,
2008
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Capital
TEN Partners, LLC
000
Xxxxxxx Xxxxxxxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
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150,937
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[__]
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________,
2008
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