SECURITIES ESCROW AGREEMENT
This
SECURITIES
ESCROW AGREEMENT,
dated
as of
[ ],
2008 (the “Agreement”)
by and
among Infinity I-China Acquisition Corp., a company formed under the laws
of the
Cayman Islands (the “Company”), the undersigned parties listed as Initial
Shareholders on the signature page hereto (collectively, the “Initial
Shareholders”) and American Stock Transfer & Trust Company, a New York
corporation (the “Escrow
Agent”).
WHEREAS,
the
Company has entered into an Underwriting Agreement, dated
[
], 2008 (“Underwriting
Agreement”)
with
Xxxxxx Xxxxxx & Co. Inc. (“Xxxxxx”)
and
Legend Merchant Group (“Legend”)
acting
as representatives (collectively, the “Representatives”)
of the
several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to
purchase 4,500,000 units (not including the underwriters’ over-allotment
option; such units, “Units”)
of the
Company. Each Unit consists of one ordinary share of the Company, par value
$.0001 per share (the “Ordinary
Shares”),
and
one warrant (“Warrant”),
each
Warrant to purchase one Ordinary Share, all as more fully described in the
Company’s definitive Prospectus, dated [
], 2008 (the “Prospectus”)
comprising part of the Company’s Registration Statement on Form F-1 (File No.
333-[
]) under the Securities Act of 1933, as amended (the “Registration
Statement”),
declared effective on
[
], 2008 (the “Effective
Date”);
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 their Ordinary Shares, as set forth opposite
their respective names in Exhibit
A
attached
hereto (collectively the “Escrow
Shares”),
in
escrow as hereinafter provided;
WHEREAS,
the
Company has entered into a Subscription Agreement with certain of the Initial
Shareholders (the “Initial
Warrantholders”,
and
together with the Initial Shareholders, the “Initial
Holders”),
dated
December 26, 2007 (the “Subscription
Agreement”),
pursuant to which the Initial Warrantholders have agreed to purchase 1,500,000
warrants (the “Private
Warrants”)
in a
private placement transaction pursuant to Regulation S promulgated under
the
Securities Act of 1933, as amended;
WHEREAS,
the
Initial Warrantholders have agreed as a condition of the sale of the Private
Warrants to deposit the Private Warrants (together with the Escrow Shares,
the
“Escrow
Securities”),
with
the Escrow Agent 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,
in
consideration of the foregoing and the agreements and covenants herein
contained, and intending to be legally bound, the parties hereto agree as
follows:
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.
On or
before the Effective Date, each of the Initial Holders shall deliver to the
Escrow Agent certificates representing his, her or 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 his or her Escrow Securities will bear a legend to reflect the
deposit of such Escrow Securities under this Agreement.
3. Disbursement
of the Escrow Securities.
3.1 The
Escrow Agent shall hold the Escrow Shares and the Private Warrants until
the
termination of their respective Escrow Period (as defined below). In the
case of
the Escrow Shares, the “Escrow
Period”
shall
be the period beginning on the date the certificates representing the Shares
are
deposited with the Escrow Agent and ending on the date that is the earlier
of
twelve (12) months following the consummation of the initial Business
Combination (as such term is defined in the Registration Statement) or three
(3)
years from the Effective Date. In the case of the Private Warrants, the “Escrow
Period” shall be the period beginning on the date the certificates representing
the Private Warrants are deposited with the Escrow Agent and ending on the
day
after the date of the consummation of the initial Business Combination. On
the
termination date of the applicable Escrow Period, the Escrow Agent shall,
upon
receiving written instructions from a duly authorized officer of the Company,
disburse each of the Initial Holders’ Escrow Securities to such Initial Holder;
provided,
however,
that if
the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof
that
the Company is being liquidated at any time during the Escrow Period, then
the
Escrow Agent shall promptly destroy the certificates representing the Escrow
Securities; and,
provided further,
that
if, after the Company consummates its initial Business Combination,
it (or
the surviving entity) subsequently consummates a liquidation, merger, stock
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
notice, executed by the Chairman, Chief Executive Officer or Chief Financial
Officer of the Company, in form reasonably acceptable to the Escrow Agent,
certifying that such transaction is then being consummated, release the Escrow
Securities to the Initial Holders so that they can similarly participate.
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 Holders in Escrow Securities.
4.1 Voting
Rights as a Shareholder.
Subject
to the terms of the Insider Letters 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 with respect to the Escrow Shares 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 stock or other non-cash property (“Non-Cash
Dividends”)
shall
be delivered to the Escrow Agent to hold in accordance with the terms hereof.
As
used herein, the term “Escrow 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 transfer to the partners of the
Initial Holders or to employees, agents or consultants of an Initial Holder
or
any of its affiliates; (ii) by gift to an immediate family member of the
Initial
Holders’ partners or to a trust, the beneficiary of which is a partner of the
Initial Holders or a member of the immediate family of the Initial Holders’
partners, (iii) by virtue of the laws of descent and distribution upon death
of
any partners of any Initial Holders, (iv) pursuant to a qualified domestic
relations order, (v) in the event of the Company’s liquidation prior to
completion of its initial Business Combination or (vi) in the event of the
Company’s consummation of a liquidation, merger, stock exchange or other similar
transaction which results in all Company shareholders having the right to
exchange their Ordinary Shares for cash, securities or other property subsequent
to consummation of the initial Business Combination; provided, however, 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 signed by the Initial Holder transferring the Escrow
Securities. During the Escrow Period, the Initial Holders shall not pledge
or
grant a security interest in the Escrow Securities or grant a security interest
in their rights under this Agreement.
2
4.4 Insider
Letters.
Each of
the Initial Holders has executed a letter agreement with the Representatives
and
the Company, dated as of the Effective Date, and which is filed as an exhibit
to
the Registration Statement (“Insider
Letter”),
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.
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 B
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.
3
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 the
Representatives, 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.
5.6 Discharge
of Escrow Agent.
The
Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by the other parties hereto,
jointly, provided, however, that such resignation shall become effective
only
upon acceptance of appointment by a successor escrow agent as provided in
Section 5.5.
5.7 Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
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, 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 the Underwriters, including,
without limitation, the Representatives, are third party beneficiaries of
this
Agreement and this Agreement may not be modified or changed without the prior
written consent of the Representatives.
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.
4
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:
Xxxx
0000, Xxx Xxxxxx
00
Xxxxx’x Xxxx Xxxxxxx
Xxxx
Xxxx
Tel:
x000-00000000
Fax:
+[
]
Attn:
Xxxxxx Xxxxxxx
If
to a
Shareholder, to his address set forth in Exhibit
A.
and
if to
the Escrow Agent, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx, Xxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
[
]
Fax
No.:
[
]
A
copy of
any notice sent hereunder shall be sent to:
Ellenoff,
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx, Esq.
Fax
No:
(000) 000-0000
and:
Xxxxxx
Xxxxxx & Co. Inc.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxx Xxxxxx
Fax
No.:
(000) 000-0000
and:
Legend
Merchant Group
00
Xxxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxxxx
Fax
No:
(000) 000-0000
and:
Xxxxxxxx
X. Xxxxxxxx, Esq.
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
(000)
000-0000
Fax
No:
(000) 000-0000
5
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
Prospectus.
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, 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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| INFINITY I-CHINA ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
| AMERICAN STOCK TRANSFER & TRUST COMPANY | ||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
INITIAL
HOLDERS:
|
||
| Infinity I-China Fund (Cayman), L.P. | ||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Address:
|
||
| Infinity I-China Fund (Israel), L.P. | ||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Address:
|
||
| Infinity I-China Fund (Israel 2), L.P. | ||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Address:
|
||
7
EXHIBIT
A
|
Investor
|
Investors
Address
and
Facsimile Number
|
|
Name:
Infinity
I-China Fund (Cayman), L.P.
Number
of Shares: 573,325
Number
of Warrants: [664,800]
|
Attn:
Facsimile
Number:
|
|
Name:
Infinity
I-China Fund (Israel), L.P.
Number
of Shares: 391,812
Number
of Warrants: [454,200]
|
Attn:
Facsimile
Number:
|
|
Number
of Shares: 328,613
Number
of Warrants: [381,000]
|
Attn:
Facsimile
Number:
|
8
EXHIBIT
B
Escrow
Agent Fees
$[
] annual escrow agent fee.
Initial
acceptance fee and first year agent fee to be paid at closing.
9
