PRIVATE PLACEMENT WARRANT ESCROW AGREEMENT
This
PRIVATE
PLACEMENT WARRANT ESCROW AGREEMENT,
dated
as of _____, 2008 (this “Agreement”),
by
and among ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Acquisition Corp., a British Virgin Islands
business company of limited liability (the “Company”),
the
private placement warrant holders listed as “Purchasers” on the signature page
hereto (collectively, the “Purchasers”),
and
Continental Stock Transfer & Trust Company, a
New
York corporation, as escrow agent (the
“Escrow
Agent”).
WHEREAS,
the
Company has entered into an Underwriting Agreement, dated _____,
2008
(the “Underwriting
Agreement”),
with
▇▇▇▇▇
▇▇▇▇▇▇, Carret & Co., LLC, Maxim
Group, LLC and ▇▇▇▇ Capital Partners, LLC, acting as representatives (the
“Representatives”)
of the
several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the underwriters have agreed to purchase
a total of 6,875,000 units (the “Units”)
of the
Company.
Each
Unit consists of one of the Company’s ordinary shares, par value $0.0001 per
share (each an “Ordinary
Share”),
and
one warrant, each warrant to purchase one Ordinary Share (the “Warrant”),
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.
333-152623) under the Securities Act of 1933, as amended (the “Registration
Statement”),
declared effective on _______, 2008 (the “Effective
Date”);
WHEREAS,
the
Purchasers have
agreed to purchase, in a private placement that will occur prior to the
effective date of the offering (the “Offering”),
2,000,000 warrants (collectively, the “Private
Placement Warrants”)
at a
purchase price of $0.50 per warrant pursuant to the terms of that certain
Warrant Purchase Agreement, dated the date hereof, and entered into by and
among
the Company and the Purchasers;
WHEREAS,
each
Purchaser has agreed to deposit the Private Placement Warrants, as set forth
opposite their respective names in Exhibit
A
attached
hereto, in escrow as hereinafter provided; and
WHEREAS,
the
Company and the Purchasers desire that the Escrow Agent accept the Private
Placement Warrants, in escrow, to be held and disbursed as hereinafter
provided.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants, representations and
warranties contained herein and intending to be legally bound hereby, the
parties agree as follows:
1. Appointment
of Escrow Agent.
The
Company and Purchasers 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 Private Placement Warrants.
On or
before the Effective Date, each Purchaser shall deliver to the Escrow Agent
certificates representing his respective Private Placement Warrants, to be
held
and disbursed subject to the terms and conditions of this Agreement. Each
Purchaser acknowledges that the certificates representing his Private Placement
Warrants bear a legend reflecting the deposit of such Private Placement Warrants
pursuant to the terms of this Agreement.
3. Disbursement
of the Private Placement Warrants.
The
Escrow Agent shall hold the Private Placement Warrants until the consummation
of the Company’s initial business combination
(as
described in the Prospectus, the “Escrow
Period”),
on
which date it shall, upon joint written instructions from the Purchasers and
the
Company, disburse the Private Placement Warrants (and any applicable instrument
of transfer) to each Purchaser or its Permitted Transferees, as defined below;
provided,
however,
that
if the Escrow Agent is notified by the Company pursuant to Section 6.8 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
Private Placement Warrants, provided further,
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 having the right to exchange their
Ordinary Shares or Warrants 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 a form
reasonably acceptable to the Escrow Agent, certifying that such transaction
is then being consummated, release the Private Placement Warrants to the
Purchasers so that they can similarly participate.
The
Escrow Agent shall have no further duties hereunder after the disbursement
or
destruction of the Private Placement Warrants in accordance with this Section
3.
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4. Restrictions
on Transfer of the Private Placement Warrants.
During
the Escrow Period, the
Purchasers will be permitted to transfer all or a portion of the Private
Placement Warrants to their permitted assigns. Prior to their release from
escrow, the Private Placement Warrants may only be transferred or assigned:
(i)
to the Company or any of its officers, directors and employees or any affiliates
or family members of such individuals, (ii) by gift to an affiliate or a member
of Purchaser’s immediate family or to a trust or other entity, the beneficiary
of which is one of its officers or directors or a member of their respective
immediate families, (iii) by virtue of the laws of descent and distribution
upon
death of any Purchaser, (iv) pursuant to a qualified domestic relations order,
or (v) with respect to limited liability companies and partnerships, to their
respective members or partners (the “Permitted
Transferees”);
provided,
however,
that
such transfers may be implemented only upon the respective Permitted
Transferee’s written agreement to be bound by the terms and conditions of this
Agreement. During the Escrow Period, neither the Purchasers nor any Permitted
Transferee shall pledge or grant any security interest in the Private Placement
Warrants or grant any security interest in their rights under this Agreement
without the prior written consent 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 the Escrow Agent 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, suit or other proceeding
involving any claim that, in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Private Placement Warrants 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 by
the
Escrow Agent 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 Private Placement Warrants or it
may
deposit the Private Placement Warrants with the clerk of any appropriate court
or it may retain the Private Placement Warrants 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 Private Placement
Warrants 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 the fees set forth on Schedule
A
hereto
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 reasonable 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 Purchasers 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 the
Escrow Agent that it is protected in acting hereunder.
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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 thereof
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 Private Placement
Warrants held hereunder. If no new escrow agent is appointed by the Company
within the 60-day period following the giving of such notice of resignation,
the
Escrow Agent may deposit the Private Placement Warrants with any court it
reasonably 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 subject to all of
the
terms of this Agreement and the delivery, by the Escrow Agent, of the Private
Placement Warrants to such successor escrow agent.
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 Waiver
of Claims against Trust Account.
Notwithstanding any other provision of this Agreement, the Escrow Agent confirms
its understanding that the Company has established the trust account (as defined
in the Prospectus, the “Trust
Account”)
relating to the securities being sold pursuant to the Prospectus. The Escrow
Agent acknowledges that the Trust Account will exist for the benefit of the
Company’s public shareholders and the monies from the Trust Account may only be
disbursed upon the occurrence of certain events as more fully described in
the
Prospectus. The Escrow Agent agrees that neither it nor any of its affiliates
have or will have any right, title, interest or claim in or to the monies in
the
Trust Account, and the Escrow Agent hereby waives any and all right, title,
interest of claim of any kind in or to any distribution of any property held
in
the Trust Account that it or its affiliates may have now or in the future and
hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for
any claim of any kind against the Trust Account for any reason whatsoever,
including in respect of the Company’s indemnification obligations set forth in
this Agreement.
6.2 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 (whether of the State of New York
or any other jurisdiction that would cause the application of the laws of any
jurisdiction other than the State of New York). Each of the Company, the
Purchasers and the Escrow Agent 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
Company, the Purchasers and the Escrow Agent hereby waives any objection to
such
exclusive jurisdiction and that such courts represent an inconvenient forum.
Any
such process or summons to be served upon each of the Company, the Purchasers
and the Escrow Agent may be served by transmitting a copy thereof by registered
or certified mail, return receipt requested, postage prepaid, addressed to
it at
the address set forth in Section 6.7 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon each of the Company, the
Purchasers and the Escrow Agent in any action, proceeding or claim.
6.3 Third
Party Beneficiaries.
The
Purchasers hereby acknowledge that each of the Underwriters
is an
intended third party beneficiary of this Agreement and this Agreement may not
be
modified or changed without the prior written consent of the
Representatives.
6.4 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
against whom such change or modification is to be enforced. This Agreement
and
any amendment may be executed in several original or facsimile counterparts,
each one of which shall constitute an original, and together shall constitute
but one instrument.
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6.5 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
6.6 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.
6.7 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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Chardan
▇▇▇▇ ▇▇▇▇▇ Acqusition Corp.
Suite
18E, Tower A
Oriental
Kenzo Plaza
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇
Fax
No.:
▇▇-▇▇-▇▇▇▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If
to a
Purchaser, to his address set forth in Exhibit
A;
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and & Di Paolo
A
copy of
any notice sent hereunder shall be sent to:
Ellenoff
▇▇▇▇▇▇▇▇ & Schole, LLP
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
and:
▇▇▇▇▇
▇▇▇▇▇▇, Carret & Co., LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and:
Maxim
Group LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4
and
▇▇▇▇
Capital Partners, LLC
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn.:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
and:
▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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.
6.8 Liquidation
of the 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, as described in the Prospectus, within the time period(s)
specified in the Prospectus.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Private Placement Warrant Escrow Agreement
as
of the date first written above.
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By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
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THE
PURCHASERS:
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6
EXHIBIT
A
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Purchaser Name and Address 1
|
Private Placement Warrant
Certificate Number
|
Number of Shares Subject to
Private Placement Warrants
|
||
1
All
addresses ▇/▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Acquisition Corp., 18E, Tower A Oriental Kenzo Plaza ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
SCHEDULE
A
ESCROW
AGENT FEES