SHARE PURCHASE AGREEMENT
Exhibit
10.1
SHARE
PURCHASE AGREEMENT (this “Agreement”) made as of this ___ day of January, 2010
between CS China Acquisition Corp. (“Buyer” or “SPAC”) and the signatory on the
execution page hereof (“Seller”).
WHEREAS,
SPAC was organized for the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition or other similar business combination, an operating
business (“Business Combination”);
WHEREAS,
SPAC consummated an initial public offering in August 2008 (“IPO”) in connection
with which it raised gross proceeds of approximately $33.1 million, a
significant portion of which was placed in a trust account pending the
consummation of a Business Combination, or the dissolution and liquidation of
SPAC in the event it is unable to consummate a Business Combination within
certain time periods.
WHEREAS,
SPAC has agreed to the acquisition of Asia Gaming & Resort Limited (the
“Acquisition”) pursuant to certain agreements (“Transaction
Agreements”).
WHEREAS,
the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding ordinary shares of
SPAC at the meeting called to approve the Acquisition.
WHEREAS,
pursuant to certain provisions in SPAC’s memorandum and articles of association,
a holder of ordinary shares of SPAC issued in the IPO may, if it votes for or
against the Acquisition, demand that SPAC convert such ordinary shares into cash
(“Conversion Rights”).
WHEREAS
the Acquisition cannot be consummated if holders of 40% or more of the SPAC
ordinary shares issued in the IPO vote against the Acquisition and exercise
their Conversion Rights.
WHEREAS,
Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller
the ordinary shares set forth on the execution page of this Agreement (“Shares”)
for the purchase price per share set forth therein (“Purchase Price Per Share”)
and for the aggregate purchase price set forth therein (“Aggregate Purchase
Price”).
In
consideration of the mutual covenants hereinafter set forth, IT IS
AGREED:
1. Purchase. Seller
hereby sells to Buyer and Buyer hereby purchases from Seller at the Closing (as
defined in Section 3(c)) the Shares at the Purchase Price Per Share, for the
Aggregate Purchase Price.
2. Agreement not to Convert;
Appointment of Proxy and Attorney-in-Fact. In further
consideration of the Aggregate Purchase Price, Seller hereby agrees it will not
exercise its Conversion Rights and if Seller has previously elected to exercise
its Conversion Rights with respect to any of its Shares, it shall properly and
validly withdraw such conversion election with respect to any of its Shares
within one business day of this Agreement. The Seller hereby
irrevocably appoints Xxxxx Xxx, Xxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxx and each
of them each with full power of substitution, as his proxy and attorney-in-fact,
to the full extent of Seller’s rights with respect to the Shares (and any and
all other shares or securities or rights issued or issuable in respect thereof)
to vote in such manner as each such person or his substitute shall in his sole
discretion deem proper, and to otherwise act (including without limitation
acting by written consent) with respect to all the Shares at any extraordinary
general meeting of shareholders (whether or not an adjourned meeting) of SPAC
held on or prior to February 15, 2011. This proxy is coupled with an
interest in the Shares and is irrevocable. The Seller hereby revokes
all prior proxies granted by Seller at any time with respect to the Shares (and
such other shares or other securities) and no subsequent proxies will be given
by Seller (and if given will be deemed not to be effective).
3. Closing
Matters.
(a) Within
two business days of the date of this Agreement, (i) Seller shall provide Buyer
with a true and correct copy of the voting instruction form with respect to the
Shares held by Seller indicating the financial institution through which such
shares are held and the control number provided by Broadridge Financial
Solutions (or other similar service provider) regarding the voting of the Shares
or written confirmation of such information as would appear on the voting
instruction form; and (ii) Buyer shall send the notice attached as Annex 1
hereto to SPAC’s transfer agent.
(b) Prior to
the Closing, Seller shall deliver or cause to be delivered to Buyer appropriate
instructions for book entry transfers of ownership of the Shares from Seller to
Buyer.
(c) The
closing of the purchase and sale of the Shares (“Closing”) will take place on
the earlier of the date that holders exercising Conversion Rights are paid their
conversion proceeds and two business days after consummation of the Business
Combination (such date being the “Closing Date”). At the Closing,
Buyer shall pay Seller the Aggregate Purchase Price by wire transfer from SPAC’s
trust account of immediately available funds to an account specified by Seller
and Seller shall deliver the Shares to Buyer electronically using the Depository
Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System to an account
specified by Buyer. For purposes of clarity, and notwithstanding
anything in this Agreement to the contrary, in the event the closing of the
Acquisition does not occur by February 15, 2011, this Agreement shall be null
and void, ab initio, and no party hereto shall have any rights or obligations
under this Agreement. It shall be a condition to the obligation of
Buyer on the one hand and Seller on the other hand, to consummate the transfer
of the Shares contemplated hereunder that the other party’s representations and
warranties are true and correct on the Closing Date with the same effect as
though made on such date, and that the other party shall have complied with all
of its obligations hereunder, unless waived in writing by the party to whom such
representations and warranties are made of compliance is promised.
2
4. Representation and
Warranties of the Seller. Seller hereby represents and
warrants to Buyer on the date hereof and on the Closing that:
(a) Sophisticated
Seller. Seller is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the sale of Shares to
Buyer.
(b) Independent
Investigation. Seller, in making the decision to sell the
Shares to Buyer, has not relied upon any oral or written representations or
assurances from Buyer or any of its officers, directors or employees or any
other representatives or agents of Buyer. Seller has had access to
all of the filings made by SPAC with the United States Securities and Exchange
Commission (“SEC”), pursuant to the Securities Exchange Act of 1934 and the
Securities Act of 1933 (“Securities Act”), in each case to the extent available
publicly via the SEC’s Electronic Data Gathering, Analysis and Retrieval
system.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery thereof by Buyer, is a
valid and binding agreement enforceable in accordance with its terms, subject to
the general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors’ rights generally. The execution, delivery
and performance of this Agreement by Seller does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Seller is a
party which would prevent Seller from performing its obligations hereunder or
(ii) any law, statute, rule or regulation to which Seller is
subject.
(d) No Legal Advice from
Buyer. Seller acknowledges that is has had the
opportunity to review this Agreement and the transactions contemplated by this
Agreement with Seller’s own legal counsel and investment and tax
advisors. Seller is not relying on any statements or representations
of Buyer or any of its representatives or agents for legal, tax or investment
advice with respect to this Agreement or the transactions contemplated by the
Agreement.
(e) Ownership of
Shares. Seller is the legal and beneficial owner of the Shares
and will transfer to Buyer on the Closing Date good marketable title to the
Shares free and clear of any liens, claims, security interests, options, charges
or any other encumbrance whatsoever. The Seller beneficially owned
all of the Shares as of the close of business on January 13, 2010 and has the
sole right to exercise Conversion Rights with respect to all of the
Shares.
(f) Number of
Shares. The Shares being transferred pursuant to this
Agreement represent all the ordinary shares owned by Seller as of the date
hereof.
5. Representation and
Warranties of Buyer. Buyer hereby represents to the Seller
that:
(a) Sophisticated
Buyer. Buyer is sophisticated in financial matters and is able
to evaluate the risks and benefits attendant to the purchase of Shares from
Seller.
3
(b) Independent
Investigation. Buyer, in making the decision to purchase the
Shares from Seller, has not relied upon any oral or written representations or
assurances from Seller or any of its officers, directors, partners or employees
or any other representatives or agents of Seller other than those made in this
Agreement.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Buyer and
assuming the due authorization, execution and delivery thereof by Seller, is a
valid and binding agreement enforceable in accordance with its terms, subject to
the general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors’ rights generally. The execution, delivery
and performance of this Agreement by Buyer does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Buyer is a party
which would prevent Buyer from performing its obligations hereunder or (ii) any
law, statute, rule or regulation to which Buyer is subject.
(d) No Legal Advice from
Seller. Buyer acknowledges that is has had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with
Buyer’s own legal counsel and investment and tax advisors. Buyer is
relying solely on such counsel and advisors and not on any statements or
representations of Seller or any of its representatives or agents for legal, tax
or investment advice with respect to this Agreement or the transactions
contemplated by this Agreement.
6. Termination. Notwithstanding
any provision in this Agreement to the contrary, this Agreement shall become
null and void and of no force and effect upon the termination of the Transaction
Agreements prior to the consummation of the
Acquisition. Notwithstanding any provision in this Agreement to the
contrary, Buyer’s obligation to purchase the Shares from Seller shall be
conditioned on the approval of the proposals set forth in the Proxy Statement
and the subsequent consummation of the Acquisition.
7. Covenant of
Seller. After the execution of this Agreement and prior to
Closing, Seller shall not acquire any Common Stock or other securities of the
SPAC or effect any derivative transactions with respect thereto.
8. Acknowledgement;
Waiver. Seller (i) acknowledges that Buyer may possess or have
access to material non-public information which has not been communicated to
Seller; (ii) hereby waives any and all claims, whether at law, in equity or
otherwise, that he, she, or it may now have or may hereafter acquire, whether
presently known or unknown, against Buyer or any of its officers, directors,
employees, agents, affiliates, subsidiaries, successors or assigns relating to
any failure to disclose any non-public information in connection with the
transaction contemplated by this Agreement, including without limitation, any
claims arising under Rule 10-b(5) of the Securities and Exchange Act of 1934;
and (iii) is aware that Buyer is relying on the truth of the representations set
forth in Section 4 of this Agreement and the foregoing acknowledgement and
waiver in clauses (i) and (ii) above, respectively, in connection with the
transactions contemplated by this Agreement.
9. Counterparts;
Facsimile. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument. This Agreement or any counterpart may be executed via
facsimile transmission, and any such executed facsimile copy shall be treated as
an original.
4
10. 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 objected to such
exclusive jurisdiction and that such courts represent an inconvenient
forum.
11. Remedies. Each
of the parties hereto acknowledges and agrees that, in the event of any breach
of any covenant or agreement contained in this Agreement by the other party,
money damages may be inadequate with respect to any such breach and the
non-breaching party may have no adequate remedy at law. It is
accordingly agreed that each of the parties hereto shall be entitled, in
addition to any other remedy to which they may be entitled at law or in equity,
to seek injunctive relief and/or to compel specific performance to prevent
breaches by the other party hereto of any covenant or agreement of such other
party contained in this Agreement.
12. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be
assigned by either party without the prior written consent of the other party
hereto.
13. Entire Agreement; Changes in
Writing. This Agreement constitutes the entire agreement among
the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, whether oral or written, among the parties hereto
relating to the transaction contemplated hereby. Neither this
Agreement not any provision hereof may be changed or amended orally, but only by
an agreement in writing signed by the other party hereto.
5
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
|
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
[SELLER]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
Purchase
Price Per Share: $_______
Number of
Shares: _______
Aggregate
Purchase Price: $______
6
ANNEX 1
IRREVOCABLE INSTRUCTIONS –
FUNDS RELEASE
TO: Continental
Stock Transfer & Trust Company
Re: Trust
Account No.: ________________
Gentlemen:
CS China
Acquisition Corp. (the “Company”) is providing these irrevocable instructions to
you in connection with the above-described Trust Account established in
connection with and pursuant to an Investment Management Trust Agreement dated
as of August 11, 2008 between the Company and Continental Stock
Transfer & Trust Company as Trustee (the “Trust
Agreement”). Upper case terms used herein shall have the meanings
ascribed thereto in the Trust Agreement.
In the
event the Company delivers to you a Termination Letter substantially in the form
of Exhibit A to the Trust Agreement, in addition to the other documents required
to be delivered pursuant to Exhibit A to the Trust Agreement, then on the
earlier of the date the Company pays all holders exercising their conversion
rights or two business days after the consummation of the Business Combination,
you are irrevocably instructed to deliver from the Trust Account an aggregate
amount equal to $___________ in consideration for the delivery (through the DWAC
System to the Company’s account) of an aggregate of _________ shares of the
Company’s common stock beneficially owned by _____________
(“Seller”). Such amounts shall be delivered to Seller in accordance
with the bank wire instructions set forth below:
__________________
__________________
__________________
__________________
In order
to expedite payment, attached is Seller’s Form W-9.
Kindly
acknowledge where indicated below, your receipt and understanding of these
instructions and return a copy to Xxxxxxxx Xxxxxx, The Chrysler Building, 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxx Xxxx Xxxxxx, Esq., Fax Number: (000)
000-0000; Phone Number: (000) 000-0000, and ________, attention: ______________,
Fax Number: _____________; Phone Number ___________.
7
A
facsimile signed and electronically delivered copy of this letter shall be
deemed an original.
|
Very
truly yours,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
Acknowledged
and Agreed:
CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
By:
Name:
Title:
8
