ESCROW AGREEMENT
ESCROW
AGREEMENT (the “Agreement”), dated as
of [ ], 2009 by and among Loeb
& Loeb LLP, as escrow agent (“Escrow Agent”), Xx.
Xxxx Kung Tok (the “Seller”), China
Holdings Acquisition Corp. (including any successors, the “Parent”) and China
Ceramics Co., Ltd., a wholly-owned subsidiary of the Parent (the “Purchaser”).
WHEREAS,
the Purchaser, the Parent, Jinjiang Hengda Ceramics Co., Ltd. (“Hengda”), Success
Winner Limited (the “Company”), the owner of 100% of the equity interests of
Stand Best Creation Limited, a Hong Kong company which owns 100% of the equity
interest of Hengda, and the Seller entered into a Stock Purchase Agreement dated
[ ], 2009 (the “Purchase Agreement”)
providing for the acquisition by the Purchaser of all of the outstanding shares
of the Company in exchange for the consideration specified in the Purchase
Agreement; and
WHEREAS,
pursuant to Section 2.3(a) of the Purchase Agreement, the Seller is required to
deposit with Escrow Agent on the date hereof 574,000 shares of common stock, par
value $0.0001 per share of the Purchaser (the “Escrowed Shares”) in
connection with the transactions contemplated by the Purchase
Agreement;
NOW,
THEREFORE, the parties agree as follows:
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Purchase
Agreement.
2. Appointment and Acceptance
of Escrow Agent. The Parent, the Purchaser and the Seller
hereby appoint Escrow Agent to act, and Escrow Agent hereby agrees to act, as
escrow agent hereunder.
3. Escrow
Deposit. Concurrently with the execution of this Agreement,
the Seller shall deposit the Escrowed Shares with the Escrow Agent.
4. [Intentionally
Omitted].
5. Disbursement of
Deposit.
a. In
the event that any Purchaser Indemnitee is entitled to indemnification from the
Seller, Hengda or the Company under the terms of Article XI of the Purchase
Agreement, one of nominees of the Parent to the Board of Directors of the Parent
following the consummation of the transactions contemplated by the Purchase
Agreement (a “Parent
Board Nominee”) shall provide a notice to Escrow Agent of such claim (a
“Claim”)
against the Escrow Shares, stating in reasonable detail a description of the
facts upon which such Claim is based and a reference to the provisions of the
Purchase Agreement in respect of which such Claim shall have
occurred. Escrow Agent shall mail a copy of such Claim notice to the
Seller in accordance with the provisions of Section 16 of this
Agreement. Unless the Escrow Agent receives a timely Objection Notice
(as defined below) from the Seller pursuant to Section 6, Escrow Agent shall
disburse the amount of Escrow Shares specified in the notice of the Claim as
directed in such notice of Claim.
b. In
the event that Escrow Agent receives an instruction letter signed by the Seller
and a Parent Board Nominee, the Escrow Agent shall promptly distribute all or
any portion of the Escrow Shares as directed by such instruction
letter.
c. In
the event that any portion of the Escrow Shares (not including any amounts
subject to an Objection Notice pursuant to Section 6 of this Agreement, which
amounts will remain in escrow pursuant to this Agreement until disbursed in
accordance with Section 6) remains in escrow with the Escrow Agent on the date
the Purchaser’s audited financial statements for the fiscal year ending December
31, 2010 are filed with the Securities and Exchange Commission pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended, on
and after such date, the Escrow Agent shall disburse the remaining Escrow Shares
in accordance with written instructions to be provided by the
Seller.
6. Dispute of
Claim. The Seller shall have the right to dispute any Claim
against the Escrow Shares within the thirty (30) day period following the
Seller’s receipt of a copy of a Claim notice by delivering to Escrow Agent and
both Parent Board Nominees written notice (an “Objection Notice”)
that the Seller disputes the matter(s) set forth in such Claim notice either
with respect to the validity or the amount of the Claim (or
both). Such notice shall include the basis, with reasonable
specificity, of the objection. If an Objection Notice is not received
within such thirty (30) day period, the Seller will be deemed to have waived its
right to object to the disbursement of all or any portion of the Escrowed Shares
pursuant to such Claim. Upon timely receipt of an Objection Notice,
Escrow Agent shall take no action with respect to the Claim, except upon receipt
of joint written instructions from the Seller and a Parent Board Nominee or by a
final non-appealable order of a court of competent jurisdiction (“Final
Order”). Escrow Agent shall promptly follow such instructions
or Final Order upon receipt thereof. Escrow Agent shall be entitled
to receive an opinion of counsel (which will be paid for by the Purchaser) that
such Final Order is final and binding. If the amount necessary to
satisfy any disputed Claim, as ultimately determined via joint written
instructions or Final Order, is in excess of the Escrow Shares, then Escrow
Agent shall pay over the Escrow Shares pursuant to the joint written
instructions or Final Order, but shall in no way be responsible for any such
excess.
7. Liability of Escrow
Agent. Escrow Agent shall be liable only for its bad faith,
willful misconduct or gross negligence and not for any act done or omitted by it
hereunder in good faith. The parties hereto agree that Escrow Agent
will not be called upon to construe any contract or
instrument. Escrow Agent is authorized to comply with and obey laws,
orders, judgments, decrees, and regulations of any governmental authority,
court, tribunal, or arbitrator; provided, however, that Escrow Agent shall, to
the extent practicable, give each of the other parties hereto reasonable notice
of its intention to comply with or obey any such law, order, judgment, decree,
or regulation and the opportunity to object to such intention to comply or obey
(for which Escrow Agent shall be entitled to indemnification as provided in this
Agreement); provided, further, that Escrow Agent shall not be required to give
any such notice if, in its reasonable judgment, a delay in complying or obeying
any such law, order, judgment, decree, or regulation would prejudice any rights
of Escrow Agent or subject it to any liability. If Escrow Agent
complies with or obeys any such law, order, judgment, decree, or regulation,
Escrow Agent shall not be liable to any of the parties hereto or to any other
person even if such law, order, judgment, decree, or regulation is subsequently
reversed, modified, annulled, set aside, vacated, found to have been entered
without jurisdiction, or found to be in violation of or beyond the scope of a
constitution or a law.
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8. Actions
Protected. Escrow Agent may rely, and shall be protected in
acting or refraining from acting, upon any written notice, waiver, consent,
certificate, receipt, authorization, power of attorney, instruction, request or
other paper or document (each a “Notice”), furnished
to it hereunder and believed by it to be genuine. If Escrow Agent receives a
Notice under which some action is to be taken by it, it shall not be required to
act thereon until it has had an opportunity, if it so desires and in its sole
discretion, to investigate the authenticity of such Notice.
9. Legal
Counsel. Escrow Agent may consult with and obtain advice from
legal counsel of its own choice in the event of any question as to the
provisions hereof or its duties hereunder and shall have full and complete
authorization and protection for any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel. The
Seller acknowledges that Loeb & Loeb LLP acts as counsel to the Parent and
may continue to serve in that capacity, and neither anything contained herein,
the execution or delivery hereof by Escrow Agent, nor the performance by Escrow
Agent of its duties hereunder shall in any way affect or require termination of
such relationship and the Seller hereby waives any conflict or potential
conflict resulting from such representation. Escrow Agent shall be
fully protected in acting in good faith, including without limitation acting in
accordance with the opinion and instructions of legal counsel, including
attorneys at Loeb & Loeb, LLP.
10. No Other
Duties. Escrow Agent shall have no duties arising from this
Agreement except those expressly set forth herein, and it shall not be bound by
any notice of claim or demand with respect thereto, or any waiver, modification,
amendment, termination, cancellation revision or rescission of this Agreement,
unless received by it in writing in conformity with the provisions hereof, and,
if Escrow Agent's duties hereunder are affected, unless it shall have given its
prior written consent thereto. Escrow Agent shall not be bound by any
assignment by the Seller, by the Parent or by Purchaser of any rights hereunder
unless Escrow Agent shall have received written notice thereof from the
assignor.
11. Compensation of Escrow
Agent: Indemnification. Except as specifically set forth
herein, Escrow Agent shall receive no compensation for its services under this
Agreement. Notwithstanding the foregoing, the Seller, the Purchaser
and the Parent, jointly and severally, agree to indemnify Escrow Agent for, and
to hold it harmless against, any loss, liability, damage or expense incurred by
Escrow Agent arising out of, or in connection with, this Agreement, any
litigation arising in connection with this Agreement or any transaction related
in any way hereto, including but not limited to attorneys' fees and other costs
and expenses of defending itself against any claim of liability, except for
liability or expense resulting from the bad faith, willful misconduct or gross
negligence of Escrow Agent.
12. Payment of
Expenses. The Parent shall be responsible for the reasonable
out-of-pocket expenses of Escrow Agent incurred by it in connection with its
acting as escrow agent hereunder.
13. Termination. Escrow
Agent's responsibilities and liabilities hereunder, except as a result of its
own bad faith, willful misconduct or gross negligence, will terminate upon
distribution of all Escrow Shares held by Escrow Agent in accordance with the
provision of this Agreement.
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14. Successor Escrow
Agents. Escrow Agent has the right to, and may, at any time,
resign and be discharged from its duties hereunder by giving notice in writing
of such resignation, specifying a date (no earlier than ten (10) business days
after the giving of such notice) when such resignation shall take
effect. If the other parties hereto do not appoint a substitute
escrow agent prior to the effective date of Escrow Agent's resignation, Escrow
Agent shall appoint a successor escrow agent, or, if Escrow Agent is unable to
make such an appointment may deposit the Escrow Shares with a court of
appropriate jurisdiction, and thereupon Escrow Agent shall be fully relieved and
discharged of any further duties hereunder.
15. Amendment. Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
each party hereto, or in the case of a waiver, by the party against whom the
waiver is to be effective.
16. Notices. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given when (a) delivered in person, (b) transmitted by facsimile (provided that
a copy thereof is sent the same day by first class, overnight or certified mail)
or (c) mailed by first class, overnight or certified mail, return receipt
requested, postage prepaid, addressed to the parties at the following addresses
or to such other address as a party shall hereafter specify by notice to the
other parties:
If to the
Parent and Purchaser:
China
Holdings Acquisition Corp.
0000 X.
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn: Xxxx
X. Xxxxx
Telecopy: c/x
Xxxx & Co. (203-226-8022)
If to the
Seller:
c/o
Jinjiang Hengda Ceramics Co., Ltd.
Junbing
Industrial Zone,
Anhai,
Jinjiang City
Fujian
Province, PRC
Attention: Xxxxx
Xxx Dong
Telecopy:
x00 (000) 0000 0000
In either
case with a copy to:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
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If to
Escrow Agent:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
All such
notices and communications shall be deemed to be effective and to have been
delivered on (i) the date of delivery thereof if delivered in person, (ii) one
day after a facsimile is sent, provided that an appropriate facsimile
confirmation is received, (iii) 24 hours after being sent by overnight courier,
or (iv) on the third business day after the mailing thereof to the last known
address of the recipient, except that notice of change of address shall be
effective only upon receipt or upon refusal to accept delivery
thereof.
17. Recovery of Attorneys' Fees
and Court Costs. In the event of a dispute concerning the
disbursement or distribution of the Escrow Shares which dispute is resolved by a
court order, the prevailing party shall be entitled to recovery of its
reasonable attorneys' fees, court costs, and other related expenses incident to
such cause of action from the other party.
18. Entire
Agreement. This Agreement, together with the Purchase
Agreement, as referenced herein, constitutes the entire agreement among the
parties and supersedes all prior agreements, understandings and arrangements,
oral or written, among the parties with respect to the subject matter
hereof. Any party hereto may, by an instrument in writing, waive
compliance by another party hereto with any term or provision of this Agreement
on the part of such other party hereto to be performed or complied
with. The waiver by any party hereto of a breach of any term or
provision of this Agreement shall not be construed as a waiver of any subsequent
breach.
19. Successors and
Assigns. This Agreement shall inure to the benefit of and
shall be binding upon the parties and their respective heirs, successors and
assigns. Nothing in this Agreement, expressed or implied, is intended
to or shall (a) confer on any person other than the parties, or their respective
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement, or (b) constitute the parties' partners or
participants in a joint venture. Escrow Agent shall not be obliged to
recognize any such succession or assignment until written evidence thereof shall
have been received by it.
20. Severability. In
case any one or more of the provisions of this Agreement shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision which shall be a reasonable substitute therefor, in light
of the tenor of this Agreement, and upon so agreeing, shall incorporate such
substitute provision in this Agreement. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall not affect
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
21. Assignment. This
Agreement shall not be assignable by any party without the prior written consent
of the other parties hereto.
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22. Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of law principles thereof.
23. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all of which together shall constitute one and the
same instrument and any one of which may be introduced in evidence or used for
any other purpose without the production of its duplicate
counterparts.
24. Headings. The
headings of the foregoing paragraphs of this Agreement are inserted herein for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first above written.
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Escrow
Agent:
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LOEB
& LOEB LLP
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By:
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Name:
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Xxxxxxxx
X. Xxxxxxxx
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Title:
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Partner
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Parent:
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CHINA
HOLDINGS ACQUISITION CORP.
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By:
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chairman
and Chief Executive Officer
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Purchaser:
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By:
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Name:
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Xxxx
X. Xxxxx
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Title:
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Director
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SELLER
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Xxxx
Kung
Tok
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