INDEMNITY ESCROW AGREEMENT
INDEMNITY
ESCROW AGREEMENT
ESCROW
AGREEMENT (“Agreement”) dated December 16, 2010 by and among GSME ACQUISITION
PARTNERS I, a Cayman Islands exempted company (“GSME”), Kin Sun SZE-TO and Ho
Xxxxx NING as the representatives (collectively the “Representative”) of all the
former shareholders (the “Shareholders”) of Plastec International Holdings
Limited (“Plastec”), XXXX XXXX GAO and XXX X. XXXXX, acting as the committee
(the “Committee”) representing the interests of GSME, and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, as escrow agent (the “Escrow
Agent”). Capitalized terms used herein that are not otherwise defined
herein shall have the meanings ascribed to them in the Merger Agreement (as
defined below).
GSME,
GSME Acquisition Partners I Sub (“GSME Sub”), Plastec and the Shareholders are
parties to an Amended and Restated Agreement and Plan of Reorganization, dated
as of September 13, 2010, as amended on December 9, 2010 (the “Merger
Agreement”), pursuant to which GSME Sub has merged with and into Plastec with
Plastec surviving the merger and becoming a wholly owned subsidiary of
GSME. Pursuant to the Merger Agreement, GSME is to be indemnified in
certain respects by the Insiders and the Investors. The parties
desire to establish an escrow fund as collateral security for the foregoing
indemnification obligations. The Representative has been designated
pursuant to the Merger Agreement to represent the Insiders and the Investors and
each Permitted Transferee (as hereinafter defined) of the Insiders and the
Investors (the Insiders, the Investors and all such Permitted Transferees are
hereinafter referred to collectively as the “Owners”), and to act on their
behalf for purposes of this Agreement.
The
parties agree as follows:
1. (a) Concurrently
with the execution hereof, an aggregate of 472,796 GSME Shares issued to the
Insiders and the Investors and delivered to them at the Closing pursuant to the
Merger Agreement, which shall be allocated among the Insiders and the Investors
in accordance with the allocation set forth on Schedule 1(a)
attached hereto, together with ten (10)
share transfer forms from each Insider and each Investor separate from the share
certificates executed in blank by each such Insider and Investor to be held in
escrow pursuant to the terms of this Agreement and Section 1.9 of the Merger
Agreement. The GSME Shares represented by the share certificates so
delivered to the Escrow Agent are herein referred to in the aggregate as the
“Escrow Fund.” The Escrow Agent shall maintain a separate account for
each Shareholder’s, and, subsequent to any transfer permitted pursuant to
Paragraph 1(e) hereof, each Owner’s, portion of the Escrow Fund.
(b) The
Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and
disburse the Escrow Fund solely pursuant to the terms and conditions
hereof. The Escrow Agent shall treat the Escrow Fund as a trust fund
in accordance with the terms of this Agreement and not as the property of GSME.
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, the Owners shall retain all of their rights as shareholders
of GSME with respect to GSME Shares constituting the Escrow Fund during the
period the Escrow Fund is held by the Escrow Agent (the “Escrow Period”),
including, without limitation, the right to vote their GSME Shares included in
the Escrow Fund.
(d) During
the Escrow Period, all dividends payable in cash with respect to the GSME Shares
then contained in the Escrow Fund shall be paid to the Owners, but all dividends
payable in shares 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 GSME Shares 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 permitted 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 (A) an Insider’s or Investor’s beneficial
owners (“Beneficial Owners”); (B) an entity in which an Insider or an Investor
and/or members of a Beneficial Owner’s Immediate Family beneficially own 100% of
such entity’s voting and non-voting equity securities; (C) an entity in which an
Insider or Investor and/or a member of a Beneficial Owner’s Immediate Family is
a general partner and in which such Insider or Investor and/or Beneficial
Owner’s Immediate Family beneficially own 100% of all capital accounts of such
entity; (D) members of a Beneficial Owner’s “Immediate Family” (as hereinafter
defined); and (E) a revocable trust established by a Beneficial Owner during his
lifetime for the benefit of such Beneficial Owner or for the exclusive benefit
of all or any of such Beneficial Owner’s Immediate Family. As used in
this Agreement, the term “Immediate Family” means, with respect to any
Beneficial Owner, a spouse, lineal descendants, the spouse of any lineal
descendant, and brothers and sisters (or a trust, all of whose current
beneficiaries are members of an Immediate Family of the Beneficial
Owner). In connection with and as a condition to each permitted
transfer, the Permitted Transferee shall deliver to the Escrow Agent an share
transfer form separate from the share certificate executed by the transferring
Shareholder or where applicable, an order of a court of competent jurisdiction,
evidencing the transfer of shares to the Permitted Transferee, together with ten
(10) share transfer forms separate from the share certificate executed in blank
by the Permitted Transferee with respect to the shares transferred to the
Permitted Transferee. Upon receipt of such documents, the Escrow
Agent shall deliver to GSME’s transfer agent the original share certificate out
of which the assigned shares are to be transferred, together with the executed
share transfer form separate from the share certificate executed by the
transferring shareholder, or a copy of the applicable court order, and shall
request that GSME issue new certificates representing (m) the number of shares,
if any, that continue to be owned by the transferring shareholder, and (n) the
number of shares owned by the Permitted Transferee as the result of such
transfer. GSME, the transferring shareholder 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 GSME Shares included in the Escrow Fund or
grant a security interest in such Owner’s rights under this
Agreement.
-2-
2. (a) GSME,
acting through the Committee, which has been appointed by GSME to take all
necessary actions and make all decisions on behalf of GSME with respect to its
rights to indemnification under Article VIII of the Merger Agreement, may make a
claim for indemnification pursuant to the Merger Agreement (“Indemnification
Claim”) against the Escrow Fund by giving notice (a “Notice”) to the
Representative (with a copy to the Escrow Agent) specifying (i) the covenant,
representation, warranty, agreement, undertaking or obligation contained in the
Merger Agreement which it asserts has been breached or otherwise entitles GSME
to indemnification, (ii) in reasonable detail, the nature and dollar amount of
any Indemnification Claim and (iii) whether the Indemnification Claim results
from a Third Party Claim against GSME or Plastec. The Committee also
shall deliver to the Escrow Agent (with a copy to the Representative),
concurrently with its delivery to the Escrow Agent of the Notice, a
certification as to the date on which the Notice was delivered to the
Representative.
(b) If
the Representative 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 the Representative of a copy
of the Notice, disputing whether the Indemnification Claim is indemnifiable
under the Merger Agreement, the Committee and the Representative shall attempt
to resolve such dispute by voluntary settlement as provided in paragraph 2(c)
below. If no Counter Notice with respect to an Indemnification Claim is received
by the Escrow Agent from the Representative 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
the Representative delivers a Counter Notice to the Escrow Agent, the Committee
and the Representative 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 the Representative 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 the Representative shall be unable to reach a settlement with respect to a
dispute, such dispute shall be resolved by arbitration pursuant to paragraph
2(d) below.
(d) If
the Committee and the Representative cannot resolve a dispute prior to
expiration of the 60-day period referred to in paragraph 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 a single
arbitrator for arbitration before the AAA International Center for Dispute
Resolution’s offices in New York City, New York, in accordance with the
commercial arbitration rules of the American Arbitration Association (“AAA”)
then in effect. The Committee and the Representative shall attempt to agree upon
an arbitrator; if they shall be unable to agree upon an arbitrator within 10
days after the dispute is submitted for arbitration, then either the Committee
or the Representative, upon written notice to the other, may apply for
appointment of such single arbitrator by the AAA in accordance with its
rules. GSME shall pay the fees and expenses of counsel for the
parties and the fees and expenses of the arbitrator and of other expenses of the
arbitration. The arbitrator shall render his decision within 90 days
after his appointment. Such decision and award shall be in writing
and shall be final and conclusive on the parties, and counterpart copies thereof
shall be delivered to each of the parties. Judgment may be obtained
on the decision of the arbitrator so rendered in any court having jurisdiction, and may be enforced in
any such court. If the
arbitrator shall fail to render his decision or award within such 90-day period,
either the Committee or the Representative may apply to any New York state court sitting in New York
County, New
York, or any federal court sitting in such
county then having jurisdiction, by action, proceeding or otherwise, as
may be proper to determine the matter in dispute consistently with the
provisions of this Agreement. The parties consent to the exclusive
jurisdiction of the New York state courts
sitting in New York County or any
federal court having jurisdiction and sitting in such county for this purpose. The prevailing
party (or either party, in the case of a decision or award rendered in part for
each party) shall send a copy of the arbitration decision or of any judgment of
the court to the Escrow Agent.
-3-
(e) As
used in this Agreement, “Established Claim” means any (i) Indemnification Claim
deemed established pursuant to the last sentence of paragraph 2(b) above, (ii)
Indemnification Claim resolved in favor of GSME by settlement pursuant to
paragraph 2(c) above, resulting in a dollar award to GSME, (iii) Indemnification
Claim established by the decision of an arbitrator pursuant to paragraph 2(d)
above, resulting in a dollar award to GSME or Plastec, (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 the Representative have jointly notified the Escrow Agent has been
settled in accordance with the provisions of the Merger Agreement; provided
that, subject to the terms of the Merger Agreement, notwithstanding anything
herein, no Indemnification Claim shall become an Established Claim unless and
until the aggregate amount of indemnification Losses, as set forth in Section
8.4(c) of the Merger Agreement, exceeds $500,000, in which event the entire
amount of such Established Claim, together with the entire amounts of all other
Established Claims, shall be payable.
(f) (i) Promptly
after an Indemnification Claim becomes an Established Claim, the Committee and
the Representative shall jointly deliver a notice to the Escrow Agent (a “Joint
Notice”) directing the Escrow Agent to pay to GSME, and the Escrow Agent
promptly shall pay to GSME, an amount of Escrow Shares, subject to the
provisions of Sections 2(f)(ii) and (iii), equal to (subject to the basket
described in Section 2(e) above and Section 8.4(c) of the Merger Agreement) 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).
-4-
(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 GSME in satisfaction of any Established Claim; rather, such
calculation shall be included in and made part of the Joint
Notice. GSME shall repurchase from the relevant Owners at a
repurchase price of US $0.00001 per share, and the Escrow Agent shall thereby
transfer to GSME out of the Escrow Fund that number of GSME Shares necessary to
satisfy each Established Claim, as set out in the Joint Notice. Any
dispute between the Committee and the Representative 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 the Representative in accordance with the
procedures specified in paragraph 2(d) above, and shall not involve the Escrow
Agent. Each repurchase of shares in satisfaction of an
Established Claim shall be made by the Escrow Agent delivering to GSME 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 forms separate from the share
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 forms, GSME 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 GSME Shares may be made notwithstanding any other agreements
restricting or limiting the ability of any Owner to sell any GSME Shares or
otherwise. The Committee and the Representative shall be required to
exercise utmost good faith in all matters relating to the preparation and
delivery of each Joint Notice. As used in this Section 2, “Fair
Market Value” means the average reported closing price for the GSME Shares 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 GSME files its Annual Report on Form 20-F for the
fiscal year ending April 30, 2011 (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, each Owner shall have the right to substitute for
his, her or its Escrow Shares that otherwise would be paid in satisfaction of
such claim (the “Claim Shares”) with 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, the Representative 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 GSME in lieu of the Claim
Shares, and (z) cause the Claim Shares to be returned to the Representative on
behalf of the applicable Owner.
-5-
3. On
the first Business Day after the expiration of the Escrow Period, upon receipt
of a Joint Notice, the Escrow Agent shall distribute and deliver to each Owner
share certificates representing the GSME Shares then in such Owner’s account in
the Escrow Fund, unless 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 GSME, would result in a payment to GSME, in which case
the Escrow Agent shall retain, and the total amount of such distributions to
such Owner shall be reduced by, the “Pending Claims
Reserve” (as hereafter defined). The Committee shall certify to the
Escrow Agent the number of GSME Shares to be retained
therefor. Thereafter, if any Pending Claim becomes an Established
Claim, the Committee and the Representative shall deliver to the Escrow Agent a
Joint Notice directing the Escrow Agent to pay to GSME an amount in respect
thereof determined in accordance with Section 2(f) above, and to deliver to each
Owner GSME Shares then in such owner’s account in the Escrow Fund having a value
(based on $10.00 per share as adjusted for any share splits or similar events)
equal to the amount by which the remaining portion of his account in the Escrow
Fund exceeds the then Pending Claims Reserve (determined as set forth below),
all as specified in a Joint Notice. If any Pending Claim is resolved against
GSME, the Committee and the Representative shall deliver to the Escrow Agent a
Joint Notice directing the Escrow Agent to pay to each Owner the amount by which
the remaining portion of his account in the Escrow Fund exceeds the then Pending
Claims Reserve. Upon resolution of all Pending Claims, the Committee
and the Representative shall deliver to the Escrow Agent a Joint Notice
directing the Escrow Agent to pay to such Owner the remaining portion of his or
her account in the Escrow Fund. As used in this Section 3, the
“Pending Claims Reserve” shall mean, at the time any such determination is made,
that number of GSME 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) and “Fair Market Value”
means the average reported closing price for the GSME Shares for the ten trading
days ending on the last trading day prior to the day of such
determination.
4. The
Escrow Agent, the Committee and the Representative shall cooperate in all
respects with one another in the calculation of any amounts determined to be
payable to GSME and the Owners in accordance with this Agreement and in
implementing the procedures necessary to effect such payments.
5. (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 GSME pursuant to the terms of this Agreement or, if such notice is
disputed by the Committee or the Representative, 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 GSME the amount
specified in such notice, if any, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
-6-
(d) The
Escrow Agent shall not be liable for any action taken by it in good faith, and
may consult with counsel of its own choice and shall have full and complete
authorization and indemnification under Section 5(f), 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 giving the other parties hereto written notice of such
resignation. 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 the Representative. If
no new escrow agent is so appointed within the sixty (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.
(f) Indemnification of Escrow
Agent.
(i) From
and at all times after the date of this Agreement, GSME shall, to the fullest
extent permitted by law and to the extent provided herein, indemnify and hold
harmless the Escrow Agent and each director, officer, employee, attorney, agent
and affiliate of the Escrow Agent (collectively, the “Indemnified Parties”)
against any and all actions, claims (whether or not valid), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever (including
without limitation reasonable fees, costs and expenses of one outside counsel
(but not internal counsel)) (collectively, “Losses”) actually incurred by any of
the Indemnified Parties from and after the date hereof, whether direct, indirect
or consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including, without limitation, GSME, Plastec or
the Shareholders, asserting a claim for any legal or equitable remedy against
any person under any statute or regulation, including, but not limited to, any
federal or state securities laws, or under any common law or equitable cause or
otherwise, arising from or in connection with the negotiation, preparation,
execution, performance or failure of performance of this Agreement or any
transactions contemplated herein, whether or not any such Indemnified Party is a
party to any such action, proceeding, suit or the target of any such inquiry or
investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for any
Losses to the extent they are finally determined by a court of competent
jurisdiction, subject to no further appeal, to be attributable to the gross
negligence or willful misconduct of such Indemnified Party.
-7-
(ii) If
any such action or claim shall be brought or asserted against any Indemnified
Party, such Indemnified Party shall promptly notify the Representative, the GSME
and the Committee in writing, and GSME shall assume the defense thereof,
including the employment of counsel and the payment of all reasonable
expenses. Such Indemnified Party shall, in its sole discretion, have
the right to employ separate counsel (who may be selected by such Indemnified
Party in its sole discretion) in any such action and to participate in the
defense thereof, and the reasonable fees and expenses of such counsel shall be
paid by such Indemnified Party, except that GSME shall be required to pay such
reasonable fees and expenses if (i) GSME agrees to pay such reasonable fees and
expenses, (ii) GSME shall fail to assume the defense of such action or
proceeding or shall fail, in the reasonable determination of such Indemnified
Party, to employ counsel satisfactory to the Indemnified Party in any such
action or proceeding, (iii) GSME, Plastec, the Insiders or the Investors are the
plaintiff in any such action or proceeding or (iv) the named or potential
parties to any such action or proceeding (including any potentially impleaded
parties) include both the Indemnified Party and any of Plastec, GSME, the
Insiders and/or the Investors, and the Indemnified Party shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to Plastec, the Insiders,
the Investors or GSME. All such reasonable fees and expenses payable
by GSME pursuant to the immediately preceding sentence shall be paid from time
to time as incurred, both in advance of and after the final disposition of such
action or claim. The Losses of the Indemnified Parties shall be
payable by GSME. The obligations of GSME under this Section 5(f)
shall survive any termination of this Agreement and the resignation or removal
of the Escrow Agent and shall be independent of any obligation of the Escrow
Agent.
(iii) The
parties agree that the payment by GSME of any claim by the Escrow Agent for
indemnification hereunder shall not impair, limit, modify, or affect, as between
GSME and the Insiders and Investors, the respective rights and obligations of
GSME, on the one hand, and the Insiders and Investors, on the other hand, under
the Merger Agreement.
(g) The
Escrow Agent shall be entitled to reasonable compensation from GSME for all
services rendered by it hereunder as set forth on Schedule 5(g)
hereto. The Escrow Agent shall also be entitled to reimbursement from
GSME for all reasonable expenses paid or incurred by it in the administration of
its duties hereunder including, but not limited to, all reasonable 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 the Representative
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.
6. 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 Merger Agreement.
7. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives and 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, the
Representative and the Escrow Agent.
-8-
All
disputes arising under this Agreement between the Committee and the
Shareholders, including a dispute arising from a party’s failure or refusal to
sign a Joint Notice or to deliver any notice or other document required
hereunder, shall be submitted to arbitration in the same manner as disputes
under the Merger Agreement are to be arbitrated pursuant to Section 11.13
thereof. The Committee and the Shareholders each hereby consent 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
the Shareholders 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 9, 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
Xxxx Xxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx X. Xxxxxxx, Esq.
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:
A. If
to the Committee, to it at:
Xxxx Xxxx
Gao
Xxx X.
Xxxxx
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxx 000000
Telecopier
No.:
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
B. If
to the Representative, to it at:
Mr. Kin Sun Sze-To and Xx. Xx Xxxxx
NING
Xxxx 00, 00/X, Xxxxxx Xxxxxx
Xxxxxx
00 Xxx Xxxx Road, Xxxx
Xxxx
Kowloon, HK
Telephone: 000-00000000
Telecopier:
852-27796001
-9-
with a
copy to:
Xxxxx X.
Xxxxxxx, Esq.
Xxxx Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx,
XX 00000
Telecopier: 000-000-0000
And
Xx. Xxxxxxx Xxxx
Xxxx 00, 00/X, Xxxxxx Xxxxxx
Xxxxxx
00 Xxx Xxxx Xxxx, Xxxx
Xxxx
Xxxxxxx, XX
Telephone: 000-00000000
Telecopier: 852-27796001
C. If
to the Escrow Agent, to it at:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxxxxx
Telecopier
No.: 212-509-5150
D.
If
to GSME, to it at:
GSME
Acquisition Partners I
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxx 000000
Attn:
Chief Executive Officer
Telecopier:
with a
copy to:
Xxxxxx
Corporate Services Limited
P.O. Box
309
Xxxxxx
House
South
Xxxxxx Xxxxxx
Xxxxx
Xxxxxx XX0-0000
Xxxxxx
Xxxxxxx
Telecopier
No.: 000-000-0000
-10-
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) 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
GSME.
(b) 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.
(c) When
reference is made in this Agreement to Sections, such reference shall be to a
Section of this Agreement unless otherwise specified.
[Signatures
are on following page]
-11-
IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement on
the date first above written.
|
GSME
ACQUISITION PARTNERS I
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
REPRESENTATIVE:
|
|
|
Kin
Sun SZE-TO
|
|
|
Ho
Xxxxx
NING
|
|
|
COMMITTEE:
|
|
Xxxx
Xxxx Gao
|
|
Xxx
X.
Xxxxx
|
|
ESCROW
AGENT:
|
|
|
CONTINENTAL STOCK
TRANSFER & TRUST
COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
-12-
Schedule
1(a)
ESCROW
SHARES ALLOCATION
|
Name
|
Address
|
Escrow
|
||||
|
Sun
Yip Industrial Company Limited (BVI)
|
Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx, 00 Xxxx To Road, Xxxx Xxxx, Kowloon, Hong
Kong
|
317,435 | ||||
|
Tiger
Power Industries Limited (BVI)
|
Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx, 00 Xxxx To Road, Xxxx Xxxx, Kowloon, Hong
Kong
|
55,081 | ||||
|
Expert
Rank Limited (BVI)
|
Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx, 00 Xxxx To Road, Xxxx Xxxx, Kowloon, Hong
Kong
|
9,834 | ||||
|
Fine
Colour Limited (BVI)
|
Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx, 00 Xxxx To Road, Xxxx Xxxx, Kowloon, Hong
Kong
|
20,236 | ||||
|
Greatest
Sino Holdings Limited (BVI)
|
Xxxx
00, 00/X, Xxxxxx Xxxxxx Xxxxxx, 00 Xxxx To Road, Xxxx Xxxx, Kowloon, Hong
Kong
|
7,186 | ||||
|
Colourful
Asia International Limited (BVI)
|
Xxxx
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxx Tak Centre, Xxxxxx Xxx, Hong
Kong
|
25,200 | ||||
|
Top
Universe Management Limited (BVI)
|
Xxxx
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxx Tak Centre, Xxxxxx Xxx, Hong
Kong
|
37,824 | ||||
|
Total
|
472,796 | |||||
-13-
Schedule
5(g)
|
Amount
|
Description
|
|
|
$___
per month
|
|
From
the date hereof until the termination of the Escrow Agent’s duties
pursuant to Section
1(b).
|
-14-
