SECURITIES ESCROW AGREEMENT
SECURITIES
ESCROW AGREEMENT, dated as of __________, 2011 (“Agreement”) by and among Prime
Acquisition Corp., a Cayman Islands exempted company (“Company”), the
undersigned parties listed as Initial Shareholders on the signature page hereto
(collectively, the “Initial Shareholders”) and American Stock Transfer &
Trust Company as escrow agent (the “Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated _________, 2011
(“Underwriting Agreement”) with Chardan Capital Markets, LLC (“Chardan”), 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 up to 4,000,000 units
(“Units”) of the Company, each consisting of one ordinary share of the Company,
par value $0.001 per share (the “Ordinary Shares”), and one-half of a Warrant (a
“Warrant”). Each full 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 __________, 2011 by and between the Company
and American Stock Transfer & Trust Company as Warrant Agent;
and
WHEREAS,
pursuant to the Placement Warrant Purchase Agreement, dated as of ____________,
2011, among the Company and certain purchasers, the Company has
issued 1,638,800 full warrants to purchase Ordinary Shares in a private
placement that will occur immediately prior to the IPO (the “Private
Placement”); and
WHEREAS,
the Initial Shareholders 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 Units (and the Ordinary Shares
and Warrants included in the Units) owned by them prior to the consummation of
the Public Offering and the Private Placement, which amounts are set forth
opposite their respective names in Schedule A attached
hereto (collectively “Escrow Securities”; provided, however, that if Chardan does not
exercise the over-allotment option in full, such lesser amount as remains after
the cancellation of shares held in escrow pursuant to Section 3.1), in escrow as
hereinafter provided; and
WHEREAS,
the Company and the Initial Shareholders desire that the Escrow Agent accept the
Escrow Shares, 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 Shareholders 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
Private Placement and the Public Offering, each of the Initial Shareholders
shall deliver to the Escrow Agent certificates representing his or her
respective Escrow Securities to be held and disbursed subject to the terms and
conditions of this Agreement. Each Initial Shareholder acknowledges
and agrees that the certificates representing his or her 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 fifty percent (50%) of
the Escrow Securities, 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 that date which is nine (9) months after the date
on which the Company consummates its initial Business Combination (as
hereinafter defined) has occurred (the “First Escrow Period”). The
Escrow Agent shall hold the remaining fifty percent (50%) of the Escrow
Securities, 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 that the date which is one (1) year after the
date on which the Company consummates its initial Business Combination (the
“Second Escrow Period”) has occurred (the “Second Escrow
Securities”). Following the termination of either the First Escrow
Period or the Second Escrow Period (as applicable), the Escrow Agent shall, upon
written instructions from each Initial Shareholder, disburse each of the Initial
Shareholder’s Escrow Securities to such Initial Shareholder; 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 its 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, stating that such transaction is then
being consummated, release the Escrow Securities to the Initial Shareholders
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; and provided further, that if the
Escrow Agent is notified by the Company that Chardan did not exercise its
overallotment option (as further described in the Registration Statement) or
exercised it in part, an amount such that the remaining Ordinary Shares included
in the Escrow Securities shall not exceed 25.4% of the outstanding Ordinary
Shares post-Public Offering (but in no event more than 204,000 Escrow
Securities) shall be forfeited by the Initial Shareholders and cancelled by the
Company and the Escrow Agent shall promptly destroy the certificates
representing such Escrow Securities. For purposes of this Agreement, (i) a
“Business Combination” shall mean an acquisition by a stock exchange, asset
acquisition or other similar business combination, or controlling, through
contractual arrangements, of one or more target businesses having a fair market
value of at least 80% of the Company’s net assets at the time of such
acquisition.
3.2. Company
Covenants. The Company hereby covenants and agrees to (i)
cause its officers to act in good faith regarding the release of the Escrow
Securities pursuant to Section 3.1, and (ii) to promptly release the Escrow
Securities after the end of the First Escrow Period and the Second Escrow
Period.
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3.3. Duties. The
Escrow Agent shall have no further duties hereunder after the disbursement or
destruction of the Escrow Securities in accordance with this Section
3.
4. Rights of Initial
Shareholders 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
Shareholders shall retain all of their rights as Shareholders 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 Securities. During the
Escrow Period, all dividends payable in cash with respect to the Escrow
Securities shall be paid to the Initial Shareholders, 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 Escrow Period, no sale, transfer or other
disposition may be made of any or all of the Escrow Securities except (i) by
gift to a member of an Initial Shareholder’s immediate family or to a trust or
other entity, the beneficiary of which is an Initial Shareholder or a member of
an Initial Shareholder’s immediate family, (ii) by virtue of the laws of descent
and distribution upon death of any Initial Shareholder, or (iii) pursuant to a
qualified domestic relations order; provided, however, that such
permissive transfers may be implemented only upon the respective transferee’s
written agreement to be bound by the terms and conditions of this Agreement and
of the Insider Letter signed by the Initial Shareholder transferring the Escrow
Securities. During the Escrow Period, no Initial Shareholder shall
pledge or grant a security interest in his, her or its Escrow Securities or
grant a security interest in his, her or its rights under this
Agreement.
4.4. Insider
Letters. Each of the Initial Shareholders has executed a
letter agreement with Chardan 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. 333-171777 with
respect to the Units to be issued in the Public Offering (the “Registration
Statement”), respecting the rights and obligations of such Initial Shareholder
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 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, 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 Shareholders 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
Chardan and the Initial Shareholders, 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 Shareholders, 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, without giving effect to any choice-of-law provisions thereof that
would compel the application of the substantive laws of any other
jurisdiction. 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 Shareholders hereby
acknowledges that Chardan is a third-party beneficiary of this Agreement and
this Agreement may not be modified or changed without the prior written consent
of Chardan.
6.3. Amendment. This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. This Agreement or any provision
hereof may only be changed, amended or modified by a writing signed by Escrow
Agent and holders of 65% or more of the Escrow Securities, and with the consent
of the holders of 90% of the Ordinary Shares sold in the Public Offering (the
“IPO Shares”), it being the specific intention of the parties hereto that each
holder of an IPO Share is and shall be a third-party beneficiary of this Section
6.3 with the same right and power to enforce this Section 6.3 as any of the
parties hereto. For purposes of this Section 6.3, the “consent of the
holders of 90% of the IPO Shares” shall mean receipt by the Escrow Agent of a
certificate from an entity certifying that (i) such entity regularly engages in
the business of serving as inspector of elections for companies whose securities
are publicly traded, and (ii) either (a) the holders of record of 90% of the IPO
Shares of record as of a record date established in accordance with the
applicable provisions of the Companies Law (2009 Revision) of the Cayman Islands
(the “Companies Law”), have voted in favor of such amendment or modification or
(b) the holders of record of 90% of the IPO Shares of record as of a record date
established in accordance with the applicable provisions of the Companies Law
have delivered to such entity a signed writing approving such amendment or
modification.
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.
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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 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:
Xx. 000,
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx
Xxxxx
Xxxxxxxx, 000000 Xxxxx
Attn:
Xxxxxxx Xxx-Xxxxx Yu, President
If to an
Initial Shareholder, to his address set forth in Schedule
A.
and if to
the Escrow Agent, to:
American
Stock Transfer & Trust Company
00 Xxxxxx
Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Compliance
Department
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:
Chardan
Capital Markets, LLC
00 Xxxxx
Xxxxxx
Xxxxx
0000
Xxx Xxxx,
X.X. 00000
Attn:
Xxxxx Xxxxxxx, Chief Executive Officer
and:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx, 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
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.
- Signature page of the Company
immediately follows -
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WITNESS
the execution of this Agreement as of the date first above written.
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By:
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Name:
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Title:
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- Signature page of Initial
Shareholders immediately follows -
Escrow
Agreement
WITNESS the execution of this Agreement
as of the date first above written.
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INITIAL
SHAREHOLDERS:
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Yong
Xxx Xx
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Xxxxx
Xxxx-Xxxx Xxx
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THE
SHODAN COMPANY
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Name:
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Title:
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Xxxxxxx
Xxx-Xxxxx Yu
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| PUWAY LTD. |
| Name: |
| Title: |
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Xxxxxx
Xxx
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Xxxxxx
Xxx
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Xxxxxx
Xx
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Xxxxx
Xxx
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- Signature page of Escrow Agent
immediately follows -
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Escrow
Agreement
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WITNESS the execution of this Agreement
as of the date first above written.
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AMERICAN
STOCK TRANSFER
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& TRUST COMPANY, as
Escrow Agent
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By:
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Name:
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Title:
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Escrow
Agreement
SCHEDULE
A
First
Escrow
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Name and
Address of
Initial Shareholder
|
Number
of Shares
|
Stock
Certificate
Numbers
|
Number
of Warrants
|
Date of
Insider Letter
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|||||||
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Yong
Xxx Xx
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195,500 | (1) |
[____]
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97,750 | (7) |
[_____
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] | ||||
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Xxxxx
Xxxx-Xxxx Xxx
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234,600 | (2) |
[____]
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117,300 | (8) |
[_____
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] | ||||
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The
Shodan Company
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101,660 | (3) |
[____]
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50,830 | (9) |
[_____
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] | ||||
| Xxxxxxx Xxx-Xxxxx Yu | 101,660 |
(3)
|
[____]
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50,830 |
(9)
|
[_____
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] | ||||
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Puway
Ltd.
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78,200 | (4) |
[____]
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39,100 | (10) |
[_____
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] | ||||
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Xxxxxx
Xxx
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27,370 | (5) |
[____]
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13,685 | (11) |
[_____
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] | ||||
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Xxxxxx
Xxx
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27,370 | (5) |
[____]
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13,685 | (11) |
[_____
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] | ||||
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Xxxxxx
Xx
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7,820 | (6) |
[____]
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3,910 | (12) |
[_____
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] | ||||
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Xxxxx
Xxx
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7,820 | (6) |
[____]
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3,910 | (12) |
[_____
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] | ||||
Second
Escrow
|
Name and
Address of
Initial Shareholder
|
Number
of Shares
|
Stock
Certificate
Numbers
|
Number
of Warrants
|
Date of
Insider Letter
|
|||||||
|
Yong
Xxx Xx
|
195,500 | (1) |
[____]
|
97,750 | (7) |
[_____
|
] | ||||
|
Xxxxx
Xxxx-Xxxx Xxx
|
234,600 | (2) |
[____]
|
117,300 | (8) |
[_____
|
] | ||||
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The
Shodan Company
|
101,660 | (3) |
[____]
|
50,830 | (9) |
[_____
|
] | ||||
| Xxxxxxx Xxx-Xxxxx Yu | 101,660 |
(3)
|
[____]
|
50,830 |
(9)
|
[_____
|
] | ||||
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Puway
Ltd.
|
78,200 | (4) |
[____]
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39,100 | (10) |
[_____
|
] | ||||
|
Xxxxxx
Xxx
|
27,370 | (5) |
[____]
|
13,685 | (11) |
[_____
|
] | ||||
|
Xxxxxx
Xxx
|
27,370 | (5) |
[____]
|
13,685 | (11) |
[_____
|
] | ||||
|
Xxxxxx
Xx
|
7,820 | (6) |
[____]
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3,910 | (12) |
[_____
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] | ||||
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Xxxxx
Xxx
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7,820 | (6) |
[____]
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3,910 | (12) |
[_____
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]
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(1) Up to
25,500 shares subject to forfeiture pursuant to Section 3.1.
(2) Up to
30,600 shares subject to forfeiture pursuant to Section 3.1.
(3) Up to
13,260 shares subject to forfeiture pursuant to Section 3.1.
(4) Up to
10,200 shares subject to forfeiture pursuant to Section 3.1.
(5) Up
to 3,570 shares subject to forfeiture pursuant to Section 3.1.
(6) Up to
1,020 shares subject to forfeiture pursuant to Section 3.1.
(7) Up to
12,750 shares subject to forfeiture pursuant to Section 3.1.
(8) Up to
15,300 shares subject to forfeiture pursuant to Section 3.1.
(9) Up to
6,630 warrants subject to forfeiture pursuant to Section 3.1.
(10) Up
to 5,100 warrants subject to forfeiture pursuant to Section 3.1.
(11) Up
to 1,785 warrants subject to forfeiture pursuant to Section 3.1.
(12) Up
to 510 warrants subject to forfeiture pursuant to Section 3.1.
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EXHIBIT
A
Escrow
Agent Fees
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Description
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Amount
($)
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Fee
for acting as Escrow Agent
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[_____]
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