SECURITIES ESCROW AGREEMENT
SECURITIES
ESCROW AGREEMENT, dated as of [_________], 2008 (this “Agreement”) by and
among ASM Acquisition Company Limited, a Cayman Islands exempted company (the
“Company”), the undersigned parties listed as Initial Holders on the signature
page hereto (collectively, the “Initial Holders”), and Continental Stock
Transfer & Trust Company, a New York corporation, as escrow agent ( the
“Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated [_________],
2008
(“Underwriting Agreement”), with UBS Securities LLC (“UBS”), as representative
of the underwriters named therein (collectively, the “Underwriters”), in
connection with a public offering (the “Public Offering”) by the Company of
Units (as hereafter defined), pursuant to which, among other matters, the
Underwriters have agreed to purchase 15,000,000 units (“Units”) of the Company
(not including the Underwriters’ over-allotment option), each consisting of one
ordinary share of the Company, par value $.001 per share (an “Ordinary Share”),
and one warrant (a “Warrant”). Each Warrant evidences the right of the holder
thereof to purchase one Ordinary Share for $7.50, subject to adjustment, as
described in the Warrant Agreement dated as of [_________], 2008 by and between
the Company and Continental Stock Transfer & Trust Company, as warrant
agent; and
WHEREAS,
the Company will complete a private placement of 4,550,000 warrants (the
“Insider Warrants,” which term shall include both the warrants and the Ordinary
Shares issuable upon exercise of such warrants) at a price of $1.00 per Insider
Warrant (the “Private Placement”) immediately prior to the completion of the
Public Offering; and
WHEREAS,
the Initial Holders 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 the Insider Warrants and the units of the
Company (the “Founders’ Units,” which term shall include both the units and the
underlying Ordinary Shares and warrants of the Company and the Ordinary Shares
issuable upon exercise of such warrants) owned by them prior to the consummation
of the Public Offering, which amounts are set forth opposite their respective
names in Schedule
A
attached
hereto (such Insider Warrants and Founders’ Units being collectively referred to
herein as the “Escrow Securities”; provided,
however,
that if
UBS does not exercise the over-allotment option in full, the Escrow Securities
shall consist of such lesser amount as remains after the cancellation of
Founders’ Units held in escrow pursuant to Section 3.1), in escrow as
hereinafter provided; and
WHEREAS,
the Company and the Initial Holders desire that the Escrow Agent accept the
Escrow Securities, in escrow, to be held and disbursed as hereinafter
provided.
NOW,
THEREFORE, IT IS AGREED:
1. Appointment
of Escrow Agent.
The
Company and the Initial Holders 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.
Prior
to the date of the consummation of the Public Offering, each of the Initial
Holders shall cause to be delivered to the Escrow Agent certificates
representing its respective Escrow Securities to be held and disbursed subject
to the terms and conditions of this Agreement. Each Initial Holder acknowledges
and agrees that the certificates representing its Escrow Securities will be
legended to reflect the deposit of such Escrow Securities under this Agreement.
3. Disbursement
of the Escrow Securities.
3.1. The
Escrow Securities.
The
Escrow Agent shall hold the Insider Warrants, as set forth in Schedule
A,
until
it receives a certificate signed by the Chief Executive Officer or a Co-Chief
Investment Officer of the Company stating that the Company consummated its
initial Business Combination (as hereinafter defined) (the “Warrant Escrow
Period”). The Escrow Agent shall hold the Founders’ Units, as set forth in
Schedule
A,
until
it receives a certificate signed by the Chief Executive Officer or Chief
Financial Officer of the Company stating one year has passed since the date
on
which the Company consummated its initial Business Combination (as hereinafter
defined) (the “Unit Escrow Period,” and together with the Warrant Escrow Period,
the “Escrow Period”). Following the termination date of the applicable Escrow
Period, the Escrow Agent shall, upon written instructions from each Initial
Holder, disburse the Initial Holder’s Escrow Securities to such Initial Holder;
provided however,
that
if, after the Company consummates a Business Combination, it (or the surviving
entity) subsequently consummates a liquidation, merger, share exchange or other
similar transaction which results in all of the shareholders of such entity
having the right to exchange their ordinary shares for cash, securities or
other
property, then the Escrow Agent will, upon receipt of a certificate, executed
by
the Chief Executive Officer or Chief Financial Officer of the Company, in form
reasonably acceptable to the Escrow Agent, that such transaction is then being
consummated, release the Escrow Securities to the Initial Holders immediately
prior to the consummation of such transaction so that they can similarly
participate; provided,
further,
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 applicable Escrow Period,
then the Escrow Agent shall promptly destroy the certificates representing
the
Escrow Securities; provided further,
that if
the Escrow Agent is notified by the Company that UBS did not exercise its
over-allotment option pursuant to the Underwriting Agreement or exercised it
in
part, an amount of the Founders’ Units such that the remaining Ordinary Shares
underlying the Founders’ Units shall not exceed 20.0% of the outstanding
Ordinary Shares after the Public Offering (but in no event more than 562,500
Founders’ Units) shall be forfeited by the Initial Holders and cancelled by the
Company and the Escrow Agent shall promptly destroy the certificates
representing such Founders’ Units.
3.2. Duties;
Definition of Business Combination.
The
Escrow Agent shall have no further duties hereunder after the disbursement
or
destruction of the Escrow Securities in accordance with this Section 3. For
purposes of this Agreement, (i) a “Business Combination” shall mean the
acquisition of all or at least a majority of the equity interest in one or
more
operating businesses having its primary operations in Asia through a merger,
capital stock exchange, asset acquisition, stock purchase, or other similar
transaction, including obtaining a majority interest through contractual
arrangements. A “Business Combination” will only involve a transaction whereby
any business or businesses which the Company acquires are neither investment
companies nor companies excluded from the definition of investment company
by
Sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940, or the
Investment Company Act.
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4. Rights
of Initial Holders 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 Holders shall retain all of their rights as
shareholders of the Company during the Escrow Period, including, without
limitation, the right to vote the Ordinary Shares underlying the Founder’s
Units.
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 Holders, but all dividends payable
in
share 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.
During
the applicable 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 the Initial Holder’s immediate family (or a member of the immediate
family of its officers or directors) or to a trust or other entity, the
beneficiary of which is the Initial Holder (or one of its officers or directors
or a member of their respective immediate families), (ii) by virtue of the
laws
of descent and distribution upon death of any Initial Holder, or (iii) pursuant
to a qualified domestic relations order; provided,
however,
that
such permitted 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 described in Section 4.4 hereof) signed
by the Initial Holder transferring the Escrow Securities. During the Escrow
Period, no Initial Holder shall pledge or grant a security interest in its
Escrow Securities or grant a security interest in its rights under this
Agreement.
4.4. Insider
Letters.
Each of
the Initial Holders has executed a letter agreement with UBS and the Company,
dated as indicated on Schedule
A
hereto
(“Insider Letter”), and which is filed as an exhibit to the Company’s
Registration Statement on Form F-1, Registration No. 333-148549, with
respect to the Units to be issued in the Public Offering (the “Registration
Statement”), respecting the rights and obligations of such Initial Holder 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.
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5.2. Indemnification.
The
Escrow Agent shall be indemnified and held harmless by the Company from and
against any expenses, including reasonable 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
A
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, reasonable 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 Holders
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 UBS, 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 deems
appropriate.
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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 Company and a majority
of the Initial Holders, 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 (each, a “New York court”), 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 Holders hereby acknowledges that UBS is a third-party beneficiary
of
this Agreement and this Agreement may not be modified or changed without the
prior written consent of UBS.
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.
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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 business days after the date of
mailing, as follows:
If
to the
Company, to:
ASM
Acquisition Company Limited
Xxxx
000-0, 0xx Xxxxx
Xx.
Xxxxxx’s Xxxxxxxx
0
Xxx
Xxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxx
Attn:
Xxxxxx Xxx, Chief Executive Officer
If
to an
Initial Holder, to its address set forth in Exhibit
A.
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
[Address]
Attn: [___________]
A
copy of
any notice sent hereunder shall be sent to (but which shall not constitute
notice):
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
X. Xxxxxxxx, Esq.
and:
UBS
Investment Bank
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
[___________]
and:
Xxxxxxxx
Chance US LLP
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Attn: Xxxxxxxxx
X. Xxxxxxx, 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 Registration
Statement.
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6.8. 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 (as defined in that certain Investment
Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Continental Stock Transfer & Trust Company, as trustee
thereunder), and hereby agrees not to seek recourse, reimbursement, payment
or
satisfaction for any Claim against the Trust Account for any reason
whatsoever.
6.9. 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.
-
Signature
page of the Company immediately follows
-
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WITNESS
the execution of this Agreement as of the date first above written.
|
ASM
ACQUISITION COMPANY LIMITED
By:
_________________________________________________
Xxxxxx
Xxx,
Chief
Executive Officer
|
-
Signature
page of Initial Holders immediately follows
-
8
WITNESS
the execution of this Agreement as of the date first above written.
|
INITIAL
HOLDERS:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
|
-
Signature
page of Escrow Agent immediately follows
-
9
WITNESS
the execution of this Agreement as of the date first above written.
|
Continental
Stock Transfer & Trust Company, as Escrow Agent
By:________________________________
Name:
Title:
|
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SCHEDULE
A
|
Name
and Address of
Initial
Holder
|
Number
of
Insider
Warrants
|
Number
of
Founders’
Units
|
Date
of
Insider
Letter
|
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EXHIBIT
A
Escrow
Agent Fees
12
