Contract
EXHIBIT
10.10
FORM
OF
SECURITIES ESCROW AGREEMENT, dated as
of ________, 2010 (“Agreement”), by and among CAZADOR SUB HOLDINGS LTD., an
exempted company incorporated under the laws of the Cayman Islands with limited
liability (the “Sponsor”), CAZADOR ACQUISITION CORPORATION LTD., an
exempted company incorporated under the laws of the Cayman Islands
with limited liability (the “Company”) and CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, a New York corporation (“Escrow Agent”).
WHEREAS, the Company has entered into
an Underwriting Agreement, dated ___________, 2010 (“Underwriting Agreement”),
with Xxxxxx & Xxxxxxx, LLC. acting as representative (“Representative”) of
the several underwriters (collectively, the “Underwriters”), pursuant to which,
among other matters, the Underwriters have agreed to purchase 5,000,000
(5,750,000 if the over-allotment is exercised) units (“Units”) of the
Company. Each Unit consists of one ordinary share, par value $.0001
per share (“Ordinary Share”), and one Warrant, each Warrant to purchase one
Ordinary Share, all as more fully described in the Company’s final Prospectus,
dated ___________, 2010 (“Prospectus”) comprising part of the Company’s
Registration Statement on Form F-1 (File No. 333-________) under the
Securities Act of 1933, as amended (“Registration Statement”), declared
effective on ___________, 2010 (“Effective Date”).
WHEREAS, the Sponsor has agreed as a
condition of the sale of the Units to deposit 1,437,500 Ordinary Shares of the
Company (the “Escrow Shares”), in escrow as hereinafter provided.
WHEREAS, the Company has entered into a
Warrant Subscription Agreement with the Sponsor, dated ________, 2010 (“Warrant
Agreement”), pursuant to which the Sponsor has agreed to purchase 4,940,000
warrants (the “Founding Director Warrants”) in a private placement
transaction.
WHEREAS, the Sponsor has agreed as a
condition of the sale of the Founding Director Warrants to deposit its Founding
Director Warrants (the “Escrow Warrants” and together with the Escrow Shares,
“Escrow Securities”), in escrow as hereinafter provided.
WHEREAS, the Company and the Sponsor
desire that the Escrow Agent accept the Escrow Securities, in escrow, to be held
and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow
Agent. The Company and the Sponsor 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, the Sponsor shall
deliver to the Escrow Agent a certificate representing its Escrow Securities, to
be held and disbursed subject to the terms and conditions of this
Agreement. The Sponsor acknowledges that the certificates
representing its Escrow Securities are legended to reflect the deposit of such
Escrow Securities under this Agreement.
3. Disbursement of the Escrow
Securities.
3.1 Disbursement of the Escrow
Shares. The Escrow Agent shall hold the Escrow Shares until one year from
the date of consummation of a Business Combination (as such term is defined in
the Registration Statement), or earlier (i) with respect to 50% of the Sponsor
Shares if, subsequent to a Business Combination, the last sales price of the
Company’s Ordinary Shares exceeds $11.50 per share for any 20 trading days
within any 30-trading day period following the consummation of a Business
Combination, (ii) with respect to 50% of the Sponsor Shares if, subsequent to a
Business Combination, the last sales price of the Company’s Ordinary Shares
exceeds $15.00 share for any 20 trading days within any 30-trading day period
following the consummation of the a Business Combination, or (iii) with respect
to all of the Sponsor Shares, if following a Business Combination, the Company
consummates a subsequent liquidation, merger, amalgamation, share capital
exchange, share purchase, reorganization or other similar business transaction
which results in all of the Company’s shareholders having the right to exchange
their Ordinary Shares for cash, securities or other property (the “Escrow
Period”), on which date or dates it shall, upon written instructions from the
Sponsor, disburse the applicable number of Escrow Shares to the Sponsor;
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 immediately prior to the effectiveness of such
liquidation, the Escrow Agent shall promptly destroy the certificates
representing the Escrow Shares and the Escrow Shares shall no longer be
considered issued and outstanding securities of the Company. The
Escrow Agent shall release the Escrow Shares only upon receipt of a written
request from the Company. The Escrow Agent shall have no further
duties hereunder after the disbursement or destruction of the Escrow Shares in
accordance with this Section 3.1.
3.2 Disbursement of the Escrow
Warrants. The Escrow Agent shall hold the Escrow Warrants
until six months following the Company’s consummation of a Business Combination
(as such term is defined in the Registration Statement and shall be released
upon receipt of a written request from the Company); 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
immediately prior to the effectiveness of such liquidation, the Escrow Agent
shall promptly destroy the certificates representing the Escrow Warrants and the
Escrow Warrants shall no longer be considered issued and outstanding securities
of the Company. The Escrow Agent shall have no further duties hereunder after
the disbursement or destruction of the Escrow Warrants in accordance with this
Section 3.2.
4. Rights of Sponsor in Escrow
Shares.
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 Sponsor 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 Shares. During the
Escrow Period, all dividends payable in cash with respect to the Escrow Shares
shall be paid to the Sponsor, 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 Shares” 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) to one
or more of the Company’s officers, directors or initial unitholders, (ii) to an
affiliate or an affiliated entity under common control with the transferor,
(iii) to an entity’s beneficiaries upon its liquidation or distribution, (iv) to
relatives and trusts for estate planning purposes, (v) by virtue of the laws of
descent and distribution upon death, (vi) by private sales with respect to up to
33% of the Sponsor Shares made at or prior to the consummation of a Business
Combination at prices no greater than the price at which the Sponsor Shares were
originally purchased (approximately $0.017 per share), or (vii) pursuant to a
qualified domestic relations order; provided, however, that such permissive
transfers may be implemented only upon the transferee’s written agreement (i) to
be bound by the terms and conditions of this Agreement, (ii) to vote in
accordance with the majority of the Ordinary Shares voted by public shareholders
and (iii) to waive any rights to participate in any liquidation distribution if
the Company fails to consummate a Business Combination and, in the case of the
Escrow Shares subject to forfeiture, agreeing to forfeit such Escrow Shares to
the extent that the underwriters’ over-allotment option is not
exercised.
During
the Escrow Period, the Sponsor shall not pledge or grant a security interest in
the Escrow Securities or grant a security interest in its rights under this
Agreement. The Sponsor also agrees to take all reasonable action within its
power, in the event the Company conducts the redemption of its Units (or
Ordinary Shares underlying the Units) pursuant to a tender offer, to cause the
Company or its affiliates or any advisors to the Company, (i) not to purchase or
arrange to purchase shares outside the tender offer while such tender offer is
open or (ii) enter into any agreement, understanding or arrangement with any
other person in connection with their purchase or arrangement to purchase shares
outside the tender offer, when such tender offer is open.
4.4 Insider
Letter. The Sponsor has executed a letter agreement with the
Representative and the Company, and which is filed as an exhibit to the
Registration Statement (“Insider Letter”), respecting the rights and obligations
of the Sponsor in certain events.
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, which may be the Company’s counsel),
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 counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action taken by it hereunder or 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 without liability
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. 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 Sponsor 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, 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 reasonably
deems appropriate and be relieved of any liability whatsoever.
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, without giving effect to conflicts of law principles that would result
in the application of the substantive laws of another jurisdiction.
6.2 Third Party
Beneficiaries. The Sponsor hereby acknowledges that the
Underwriters are third party beneficiaries of this Agreement and this Agreement
may not be modified or changed without the prior written consent of the
Representative.
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.
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 be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two days after the date of mailing, as
follows:
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If
to the Company, to:
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Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Xxxxxxxxx Xxxxxxxxxx, Co-Chief Executive Officer
If to the Sponsor, to:
Cazador
Sub Holdings Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Xxxxxxxxx Xxxxxxxxxx, Co-Chief Executive Officer
and if to the Escrow Agent,
to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx and Xxxxx Di Paolo
A copy of any notice sent hereunder
shall be sent to:
DLA Piper
LLP (US)
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxx-Xxxxxx Xxxxxx, Esq.
Attn:
Xxxxxxx X. Xxxxxx, Esq.
and
Xxxxxx
& Xxxxxxx, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxx, Chief Financial Officer
and
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
Xxxxxxxx, Esq.
The parties may change the persons and
addresses to which the notices or other communications are to be sent by giving
written notice to any such change in the manner provided herein for giving
notice.
6.7 Notice to Escrow
Agent. The Company shall give the Escrow Agent written
notification in the event that the Company fails to consummate a Business
Combination within the time period(s) specified in the Prospectus.
6.8 Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
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of page intentionally left blank]
IN WITNESS WHEREOF, this Securities
Escrow Agreement has been duly executed by the parties hereto as of the date
first above written.
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CAZADOR
ACQUISITION CORPORATION
LTD.
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By:
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| Name: | |
| Title: | |
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CAZADOR
SUB HOLDINGS LTD.
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By:
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| Name: | |
| Title: | |
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CONTINENTAL
STOCK TRANSFER &
TRUST COMPANY
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By:
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| Name: | |
| Title: | |
