ESCROW AGREEMENT
Exhibit
4.6
This
Escrow Agreement (this “Agreement”) is dated
as of March 12, 2010, and is by and among Sun Zone Investments Limited, a
company organized under the laws of the British Virgin Islands (“Sun Zone”), and Sze
Kit Ting (collectively with Sun Zone, “Sellers”), SGOCO
Technology Ltd. (f/k/a Xxxxxxxxx Asia Acquisition Corp.), a company organized
under the laws of the Cayman Islands (the “Company”), and
certain holders of securities of the Company, who execute a counterpart
signature page hereto (each a “Sponsor” and
collectively “Sponsors”), and Grand
Pacific Investment Limited as escrow agent (the “Escrow
Agent”). The Company, Sellers, Sponsors and Escrow Agent are
referred to collectively herein as the “Parties”). Capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in the Exchange Agreement (as defined below).
RECITALS
WHEREAS, the Company has
entered into that certain Share Exchange Agreement (the “Exchange Agreement”),
dated as of February 12, 2010, as amended, by and among the Company, Honesty
Group Holdings Limited (“Honesty Group”), and
Sellers, who collectively own all of the outstanding shares of Honesty Group
(the “Honesty Group
Shares”), pursuant to which Sellers will exchange all of the Honesty
Group Shares for up to 14,300,000 ordinary shares of the Company (the “HMAUF Shares”);
and
WHEREAS, pursuant to the
Exchange Agreement, Sellers will be entitled to receive 5,800,000 of the HMAUF
Shares (the “Seller
Earn-Out Shares”) only if certain operating results described in the
Exchange Agreement (“Earn-Out Milestones”)
are met and, until such conditions are met, the Company and Sellers have agreed
that the Seller Earn-Out Shares will be held in escrow in accordance with the
terms of this Agreement; and
WHEREAS, in connection with
entering into the Exchange Agreement, and as a condition to the execution by
Sellers of the Exchange Agreement, Sponsors have entered into that certain
Sponsor Agreement with Sellers, dated as of February 12, 2010, as amended by
Amendment No. 1 to Sponsor Agreement, dated March 11, 2010 (as so amended, the
“Sponsor
Agreement”), pursuant to which each Sponsor agreed to deposit in escrow
certain HMAUF Shares owned by such Sponsor subject to the Company meeting the
Earn-Out Milestones (the “Sponsor Earn-Out
Shares”), and each Sponsor agreed to deposit in escrow certain HMAUF
Shares owned by such Sponsor subject to fulfillment of certain conditions (the
“Conditions”) set forth in the Sponsor Agreement, each as set forth opposite
such Sponsor’s name on Exhibit A hereto to
be held in escrow in accordance with the terms of this Agreement (the
“Sponsor Conditional
Shares” and the Seller Earn-Out Escrow Shares, the Sponsor Earn-Out
Escrow Shares and the Sponsor Conditional Shares, collectively, the “Escrow Shares”);
and
WHEREAS, the Company, Sponsors
and Sellers desire that the Escrow Agent accept the Escrow Shares, in escrow, to
be held and disbursed as hereinafter provided; and
WHEREAS, certain of the
Sponsors, consisting of Xxxx Xxxx, Xxxxxx X. Eu, Xxxxxx Family Irrevocable
Trust, AEX Enterprises Limited, X.X. Xxxxxxxxx + Co., LLC, Xxxxxxxxx 1980
Revocable Trust, Xxxx Ventures LLC, and Marbella Capital Partners Ltd (the
“Initial
Sponsors”) have entered into a Securities Escrow Agreement (the “IPO Escrow
Agreement”), dated as of March 7, 2008, with Continental Stock Transfer
& Trust Company, as escrow agent (the “IPO Escrow Agent”),
pursuant to which the Initial Sponsors have deposited in escrow their HMAUF
Shares to be held for a period of one year following the Closing of the
transactions contemplated by the Exchange Agreement or another Business
Combination as described in the IPO Escrow Agreement.
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which hereby is acknowledged, the Parties hereto agree as follows:
1. Appointment
of Escrow Agent. The Company,
Sponsors and Sellers 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 Shares.
(a) At the Closing, the
Company shall deliver to the Escrow Agent certificates representing the Seller
Escrow Shares issued in the names of Sellers and in the denominations set forth
on Exhibit
B.
(b) At the Closing, each
Sponsor whose HMAUF Shares are not held by the IPO Escrow Agent shall deliver to
the Escrow Agent certificate(s) representing such his or its Sponsor Earn-Out
Shares and Sponsor Conditional Shares. At the Closing, each Sponsor
whose HMAUF Shares are held by the IPO Escrow Agent shall deliver irrevocable
instructions to the IPO Escrow Agent to deliver to the Escrow Agent his or its
Sponsor Earn-Out Shares and Sponsor Conditional Shares at the time such Shares
would otherwise be delivered to such Sponsor under the IPO Escrow Agreement (the
“Release
Date”).
(c) At the Closing, each
Seller and each Sponsor shall deliver to the Escrow Agent all stock powers,
assignments and related documents as may be necessary to effect the transfer to
the Company and cancellation of such Seller’s Seller Escrow Shares or such
Sponsor Earn-Out Shares and Sponsor Conditional Shares.
3. Escrow
Period. The term of this
Agreement (the “Escrow
Period”) is from the Closing Date to the date on which the Escrow Agent
disburses all of the Escrow Shares according to the terms and conditions
herein.
4. Disbursement
of the Earn-Out Shares.
(a) Within ten (10) Business
Days (as hereinafter defined) after each of the First Earn-Out Milestone Date
and the Second Earn-Out Milestone Date, the Company shall give notice to the
other Parties to this Agreement specifying whether the applicable Earn-Out
Milestone has been met (a “Satisfaction
Notice”); provided, however, that no notice pursuant to this Section 4
shall be required to be given to, or permitted to be given by, Sponsors with
respect to the Second Earn-Out Milestone Date if the First Earn-Out Milestone
has been met for purposes of this Agreement. In the event the Company
fails to timely deliver a Satisfaction Notice, any Seller or Sponsor may give
notice that the Applicable Earn-Out Milestone has been met (an “Earn-Out Notice”) to
each of the other parties to this Agreement. For purposed of this Agreement, the
term “Business Days” shall mean Monday through Friday of each week other than
any days when banks generally and federal or central government offices in New
York, U.S.A., China or Hong Kong are authorized or required to be
closed.
- 2
-
(b) The Satisfaction Notice
shall include a calculation of the Income from Existing Operations for the year
ended December 31, 2010 (in the case of the Satisfaction Notice given after the
First Earn-Out Milestone Date) or the year ended December 31, 2011 (in the case
of the Satisfaction Notice given after the Second Earn-Out Milestone
Date).
(c) Within fifteen (15)
Business Days after the giving of any Satisfaction Notice or Earn-Out Notice,
any Seller or Sponsor or, in the case of an Earn-Out Notice, the Company, may
dispute the determination set forth in the Satisfaction Notice or Earn-Out
Notice (the “Dispute
Period”), by written notice to the other parties (the “Dispute
Notice”). If no Dispute Notice is given during the Dispute
Period: (i) any determination in the Satisfaction Notice that an Earn-Out
Milestone has not been met, and (ii) any determination in a Satisfaction Notice
or an Earn-Out Notice that the applicable Earn-Out Milestone has been met, shall
be final for all purposes under this Agreement.
(d) If any party timely gives
a Dispute Notice, the Company shall make available to the Sellers, the Sponsors
and their respective advisors all books and records or copies thereof used by
the Company or that are reasonably necessary to determine whether the First
Earn-Out Milestone or the Second Earn-Out Milestone, as applicable, has been met
(the “Applicable
Records”). The Applicable Records will be made available upon
written request, at the offices of the Company where they are customarily
maintained, during normal business hours. Review of the Applicable
Records shall be conducted in a manner which is not unreasonably disruptive of
the business operations of the Company and its subsidiaries. The
provisions of Section 9.2 [Confidentiality] of the Exchange Agreement shall
apply to the Sellers and the Sponsors and the respective advisors with respect
to the information in the Applicable Records to the same extent as if such
Section were included herein.
(e) If any of the Company, a
Seller or a Sponsor timely gives a Dispute Notice (in each case, creating an
“Earn-Out
Dispute”), the Company, the Sellers and the Sponsors shall use reasonable
business efforts to resolve the dispute within a period of 30 days following the
Dispute Notice. If the Earn-Out Dispute has been resolved, a joint
notice of the resolution by the Company and any Sellers or Sponsors who have
timely delivered a Dispute Notice shall be given to all of the parties to this
Agreement. If no resolution has been reached in such 30-day period,
then the Company or any Seller or Sponsor may submit the Earn-Out Dispute (a
“Dispute
Submission”) to a firm of independent accountants located in China with
expertise in U.S generally accepted accounting principles applicable to public
companies (the “Accountants”) and
shall provide a copy of the Dispute Submission to the Company (if the Dispute
Submission is made by a Seller or Sponsor), the Sellers and the Sponsors;
provided, a Dispute Submission with respect to the Second Earn-Out Milestone may
not be made by a Sponsor if the First Earn-Out Milestone has been met for
purposes of this Agreement and a copy of any Dispute Submission with respect to
the Second Earn-Out Milestone need not be given to the Sponsors if the First
Earn-Out Milestone has been met for purposes of this Agreement. The
Company shall, following reasonable notice and during regular business hours,
make available to the Accountants all Applicable Records. The
Accountants’ sole review shall be to calculate the Income from Existing
Operations in accordance with U.S. GAAP, consistently applied, and to confirm
that, based on reasonable testing conducted consistently with U.S. generally
accepted auditing standards, the Applicable Records used to calculate the Income
from Existing Operations have been maintained in accordance with U.S. GAAP,
consistently applied. The Accountants shall give notice specifying
the amount of Income from Existing Operations as calculated by the Accountants
(the “Accountants’
Determination”) to each of the Parties. The Accountants’
Determination shall be final and binding upon the Parties for all purposes of
this Agreement. If the Earn-Out Dispute relates to the First Earn-Out
Milestone and the Accountants’ Determination is that the Income from Existing
Operations for the year ended December 31, 2010 is greater than US $15,000,000,
then the First Earn-Out Milestone shall be deemed to have been met; otherwise,
the First Earn-Out Milestone shall be deemed not to have been met. If
the Earn-Out Dispute relates to the Second Earn-Out Milestone and the
Accountants’ Determination is that the Income from Existing Operations for the
year ended December 31, 2011 is greater than US $20,000,000, then the Second
Earn-Out Milestone shall be deemed to have been met; otherwise, the Second
Earn-Out Milestone shall be deemed not to have been met.
- 3
-
(f) For purposes of this
Agreement, the “Determination Date”
shall be:
(i) If the Company gives a
Satisfaction Notice and no Seller or Sponsor gives an Earn-Out Notice during the
Dispute Period, the last day of the Dispute Period;
(ii) If (x) the Company does
not timely give a Satisfaction Notice, (y) a Seller or Sponsor gives an Earn-Out
Notice, and (z) the Company does not give a Dispute Notice during the Dispute
Period, the last day of the Dispute Period; or
(iii) If there is an Earn-Out
Dispute, the date on which the Accountants give notice of the Accountants’
Determination.
(g) Within ten (10) Business
Days after the applicable Determination Date, the Escrow Agent shall disburse
the Seller and Sponsor Earn-Out Shares held in escrow as follows:
(i) In the event that the
First Earn-Out Milestone is met, the Escrow Agent shall (x) deliver 5,000,000 of
the Seller Earn-Out Shares to Sellers in the amounts set forth on Exhibit B attached
hereto; and (y) if a Notice of Conditions (as defined below) has been issued and
such Notice confirms the Conditions have been met on or prior to the
Determination Date, deliver to each Sponsor the appropriate Sponsor Earn-Out
Shares.
(ii) In the event that the
First Earn-Out Milestone is not met, no Escrow Shares shall be disbursed as a
result of the occurrence of a Determination Date with respect to the First
Earn-Out Milestone.
- 4
-
(iii) In the event the Second
Earn-Out Milestone is met: (x)(1) if the First Earn-Out Milestone was met, the
Escrow Agent shall deliver the remaining 800,000 Seller Earn-Out Shares to
Sellers in the amounts set forth on Exhibit B attached
hereto, or (2) if the First Earn-Out Milestone was not met, the Escrow Agent
shall deliver all 5,800,000 Seller Earn-Out Shares to Sellers in the amounts set
forth on Exhibit
B attached hereto; and (y) if the Sponsors’ Earn-Out Shares were not
delivered pursuant to Section 4(g)(i)(y) above and if a Notice of Conditions (as
defined below) has been issued and confirms the Conditions have been met on or
prior to the Determination Date, deliver to each Sponsor the appropriate Sponsor
Earn-Out Shares.
(iv) In the event that the
Second Earn-Out Milestone is not met but the First Earn-Out Milestone was met,
the Escrow Agent shall: (x) deliver the remaining 800,000 Seller Earn-Out Shares
to the Company, and (y) if the Sponsors’ Earn-Out Shares were not delivered
pursuant to Section 4(g)(i)(y) above and if a Notice of Conditions has been
issued and confirms the Conditions have been met on or prior to the
Determination Date, deliver to each Sponsor the appropriate Sponsor Earn-Out
Shares, if any, remaining in escrow. All Escrowed Shares returned to
the Company will be returned to the status of authorized but unissued
shares as of the Second Earn-Out Milestone Date.
(v) If neither Earn-Out
Milestone is met and the Determination Date has occurred with respect to both
the First Earn-Out Milestone and the Second Earn-Out Milestone, the Escrow Agent
shall (i) deliver all 5,800,000 Seller Earn-Out Shares to the Company and such
shares will be returned to the status of authorized but unissued shares as of
the Second Earn-Out Milestone Date; and (ii) deliver all Sponsor Earn-Out Shares
to the Company and such shares will be returned to the status of authorized but
unissued shares as of the Second Earn-Out Milestone Date.
(vi) If, as of any
Determination Date, a Notice of Conditions has been issued which states that the
Conditions have not been met, or if no Notice of Conditions has been given, no
Sponsor Earn-Out Shares shall be delivered to Sponsor and such Sponsor Earn-Out
Shares shall remain in escrow until disbursed as provided in Section 5
below.
(h) The Escrow Agent shall
deliver to the Company all stock powers, assignments and related documents as
may be necessary to effect the transfer to the Company and cancellation of any
Escrow Shares delivered to the Company pursuant to Section 4(g). All
other stock powers, assignments and related documents shall be returned to the
Seller or Sponsor who delivered such documents to the Escrow Agent promptly
after all of the Escrow Shares have been disbursed by the Escrow
Agent.
5. Disbursement
of the Sponsor Conditional Shares.
(a) Within ten (10) Business
Days after the earlier of satisfaction of the Conditions or December 31, 2011,
the Company shall give notice to the other Parties to this Agreement specifying
whether the Conditions to release of the Sponsor Conditional Shares have been
met (a “Notice of
Conditions”).
- 5
-
(b) If the Notice of
Conditions states that the Conditions to the rights of the Sponsors to the
return of the Sponsor Conditional Shares have been met, within ten (10) Business
Days after the Notice of Conditions is delivered, the Escrow Agent shall
disburse the Sponsor Conditional Shares held in escrow to the appropriate
Sponsors together with the Sponsor Earn-Out Shares, if the First Earn-Out
Milestone has been met.
(c) If the Notice of
Conditions states that the Conditions to the rights of the Sponsors to the
return of the Sponsor Conditional Shares have not been met, the Notice of
Conditions shall specify which of the Conditions have not been
met. The Sponsors shall have ten (10) Business Days after the Notice
of Conditions is delivered to dispute the Notice of Conditions by written notice
(the “Conditions
Dispute Notice”) to the Escrow Agent and the Company, setting forth with
particularity the facts demonstrating satisfaction of the
Conditions. If no Conditions Dispute Notice is received by the Escrow
Agent within such ten (10) Business Days, the Escrow Agent shall deliver all of
the Sponsor Conditional Shares and Sponsor Earn-Out Shares to the Company and
such shares will be returned to the status of authorized but unissued shares as
of the date of the Notice of Conditions.
(d) Any disputes set forth in
a timely Conditions Dispute Notice shall be resolved in the manner provided in
the Sponsor Agreement. Upon receipt by the Escrow Agent of joint
written instructions from the Company and each of the Sponsors or a final
arbitral award under the Sponsor Agreement, the Escrow Agent shall deliver the
Sponsor Conditional Shares as set forth in the joint instructions or arbitral
award.
6.
Rights of Sponsors and
Sellers in Escrow Shares.
(a) Adjustment of Escrow
Shares. The
number of HMAUF Shares deliverable upon meeting any Earn-Out Milestone or
Conditions will be proportionately increased or decreased, or subject to such
other adjustment, in the event of any stock dividend, stock split, or other
recapitalization of the Company as may be necessary or appropriate so that the
capital stock of the Company delivered to Sponsors and Sellers with respect to
any Earn-Out Milestone or satisfaction of Conditions provides Sponsors and
Sellers with the same economic and other benefits of ownership as they would
have received if the number of HMAUF Shares delivered with respect to such
Earn-Out Milestone or satisfaction of Conditions had been delivered to them at
Closing.
(b) Distributions in Respect of the
Escrow Shares. Any capital stock of the Company or other
consideration payable with respect to the HMAUF Shares held by the Escrow Agent
in connection with any stock dividend, stock split, or other recapitalization of
Company shall be issued or paid by the Company to the Escrow Agent at the same
time that capital stock of the Company or other consideration is issued or paid
to other shareholders of the Company in connection with such stock dividend,
stock split, or other recapitalization of the Company.
(c) Voting Rights as a
Shareholder. Except as herein provided, Sponsors and Sellers shall retain
all of their rights as shareholders of HMAUF during the Escrow Period with
respect to the Escrow Shares, including, without limitation, the right to vote
such shares.
- 6
-
(d) Restrictions on Transfer.
During the Escrow Period, no sale, transfer or other disposition may be made of
any or all of the Escrow Shares except (i) by gift to an affiliate or a member
of the Sponsor or Seller’s immediate family or to a trust or other entity, the
beneficiary of which is such Sponsor or Seller or a member of such Sponsor or
Seller’s immediate family, (ii) by virtue of the laws of descent and
distribution upon death of any Sponsor or Seller, 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 the
Sponsor Agreement, as amended. During the Escrow Period, Sponsors and
Sellers shall not pledge or grant a security interest in the Escrow Shares or
grant a security interest in their rights under this Agreement.
6.
Concerning the Escrow
Agent.
(a) 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 written document 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.
(b)
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 Shares 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 Shares or it may deposit the Escrow Shares with the clerk of any
appropriate court or it may retain the Escrow Shares 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 Shares are to
be disbursed and delivered. The provisions of this Section 6(b) shall
survive in the event the Escrow Agent resigns or is discharged pursuant to this
Agreement.
(c)
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
C 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.
- 7
-
(d) Further
Assurances. From time to time on and after the date hereof,
the Company, Sponsors and Sellers 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.
(e)
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 Sponsors and Sellers, the Escrow Shares
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 Shares with any court it reasonably deems
appropriate.
(f) 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
all 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 6(e).
(g)
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.
7.
Miscellaneous.
(a) 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. Except as otherwise expressly provided in the Sponsor
Agreement or Section 4 hereof, 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.
(b) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns; provided that the
Escrow Agent may only assign any of its rights or delegation of any of its
obligations hereunder in accordance with Section 6(e) hereof.
(c) 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 international courier service, four Business Days after delivery
to the courier, or, if mailed, ten Business Days after the date of mailing, as
follows:
- 8
-
If to the
Company, to:
SGOCO
Technology Ltd.
SGOCO
Xxxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attn: Xxxxxxxx
Or, President
If to a
Sponsor or a Seller, to its address set forth
on the
applicable signature page hereto, and
If to the
Escrow Agent, to:
Grand
Pacific Investment Limited
50th
Floor, Bank of China Tower
0 Xxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx
Attn:
Cheng Hoo, Executive Director
A copy of
any notice sent hereunder shall be sent to:
Xxxxx
Xxxxxxx LLP
Xxx
Xxxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxx Xxxxx, Esq.
and
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx Xxxxxx, 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.
(d)
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.
- 9
-
(e)
Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by written instrument signed by each of the Parties (or any
successor thereto), or, in the case of a waiver, by the Party or Parties waiving
compliance. No delay on the part of any Party hereof in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any Party of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise hereof or the exercise of any
other rights, power or privilege hereunder.
(f) Entire
Agreement. This Agreement, the Exchange Agreement and the
Sponsor Agreement contain the entire agreement among the Parties with respect to
the subject matter hereof and supersede all prior agreements, written or oral,
with respect hereof.
(g) Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
[Signature
Pages Follow]
- 10
-
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and
year first above written.
|
XXXXXXXXX
ASIA ACQUISITION CORP.
(to
be known as SGOCO TECHNOLOGY LTD.)
|
||
| By: |
/s/
Xxxx Xxxx
|
|
| Name: Xxxx Xxxx | ||
| Title: CEO | ||
| SUN ZONE INVESTMENTS LIMITED | ||
| By: |
/s/
Or Tin
Man
|
|
| Name: Tin Man Or | ||
| Title: Owner | ||
| Address: | ||
| /s/Xxxx Xxx Kit | ||
| SZE KIT TING | ||
| Address: | ||
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and
year first above written.
|
For
individual Sponsors:
|
For Sponsors other than individuals: | ||||
|
/s/
Xxxx Xxxx
|
Xxxxxx Family Irrevocable Trust | ||||
| Xxxx Xxxx | |||||
| By: |
/s/
Xxxxxxx X. Xxxxxx
|
||||
|
Name:
Xxxxxxx
X. Xxxxxx
|
|||||
| /s/ Xxxxxx Eu | Title: Trustee | ||||
| Xxxxxx Eu | |||||
| AEX Enterprises Limited | |||||
| By: |
/s/
Xxxxxx Eu
|
||||
| W.E. Xxxxxxxxx + Co.,LLC | |||||
| By: |
/s/
X.X. Xxxxxxxxx
|
||||
| Xxxxxxxxx 0000 revocable trust | |||||
| By: |
/s/
X.X. Xxxxxxxxx
|
||||
| Xxxx Ventures LLC | |||||
| By: |
/s/
Xxxxxx Xxxxx
|
||||
| Xxxxxx Xxxxx, Vice President | |||||
| Marella Capital Partners, Ltd. | |||||
| By: |
/s/
Xxxx Xxxx
|
||||
| Xxxx Xxxx | |||||
|
Address(for
all Sponsors):
Address:
13/F Tower 2
New
World tower
00
Xxxxxx Xxxx Xxxxxxx
Xxxx
Xxxx
|
Exhibit
A-1
To
Amendment
No. 1 to Sponsor Agreement
and
to
Dated as
of March 11, 2010
Sponsor
Affiliates & Beneficiaries
|
PRESENT
|
Forfeited
Shares
|
Share
Ownership
|
Earn-Out
Escrow
|
Conditional
Share Escrow
|
||||
|
Beneficiaries
|
Share
Ownership
|
Warrants
Ownership/
Forfeit
|
Total
Sponsor
Shares
After
Forfeit
|
Forfeited
Shares
|
Shares
not
subject
to
Earn-Out
or Conditions
|
Earn-Out
Shares
Ownership |
Conditional
Shares Ownership
|
|
|
Xxxxxx
Eu
|
173,275
|
16.3%
|
152,881
|
20,394
|
16,349
|
101,920
|
136,532
|
|
|
X.X.
Xxxxxxxxx + Co, LLC
|
178,275
|
16.8%
|
25,000
|
157,293
|
20,982
|
16,821
|
52,431
|
140,472
|
|
Xxxxxxxxx
1980 Revocable Trust
|
88,333
|
8.3%
|
441,667
|
77,937
|
10,396
|
8,335
|
25,979
|
69,602
|
|
AEX
Enterprises Limited1
|
88,333
|
8.3%
|
441,6672
|
77,937
|
10,396
|
8,335
|
25,979
|
69,602
|
|
Xxxx
Xxxx
|
230,000
|
21.7%
|
0
|
202,930
|
27,070
|
21,702
|
67,643
|
181,228
|
|
Marbella
Capital Partners Ltd
|
40,000
|
3.8%
|
200,000
|
35,292
|
4,708
|
3,774
|
11,764
|
31,518
|
|
Xxxxxx
Family Irrevocable Trust
|
173,275
|
16.3%
|
0
|
152,881
|
20,394
|
84,615
|
0
|
68,266
|
|
Xxxx
Ventures, LLC
|
88,333
|
8.3%
|
441,667
|
77,937
|
10,396
|
8,335
|
25,979
|
69,602
|
|
TOTALS
|
1,059,825
|
100.0%
|
1,550,000
|
935,089
|
124,736
|
168,266
|
311,696
|
|
2 Of these
Warrants, Warrants to purchase 250,000 ordinary shares will be transferred to an
investor. [Xxxx Investments II, LLC] at the direction of the
Company.
EXHIBIT
B
Seller
Escrow Shares
|
Seller
Name
|
First
Milestone
|
Second
Milestone
|
Total
|
||||||||
|
Sun
Zone Investments Limited
|
4,000,000 | 640,000 | 4,640,000 | ||||||||
|
Sze
Kit Ting
|
1,000,000 | 160,000 | 1,160,000 | ||||||||
|
Total
|
5,000,000 | 800,000 | 5,800,000 | ||||||||
Certificates
to be issued in denominations indicated by shaded amounts.
Exhibit
B
EXHIBIT
C
Escrow
Agent Fees
The fee
for the service of the Escrow Agent referred to in Section 6(c) shall be Fifteen
Thousand U.S. Dollars (USD 15,000.00), payable by the Company within 10 days
after signing this Agreement. The fee is not refundable.
Exhibit
C
