EXHIBIT 10.2
SECURITIES ESCROW AGREEMENT
SECURITIES ESCROW AGREEMENT, dated as of January __, 2007 ("Agreement"), by
and among the parties listed under Existing Shareholders on Exhibit A hereto
(each an "Existing Shareholder" and collectively the "Existing Shareholders"),
CHINAGROWTH SOUTH ACQUISITION CORPORATION, a company organized under the laws of
the Cayman Islands ("the Company") and AMERICAN STOCK TRANSFER & TRUST COMPANY,
a New York corporation ("Escrow Agent").
WHEREAS, the Company has entered into an Underwriting Agreement, dated
January __, 2007 ("Underwriting Agreement"), with ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
acting as representative ("Representative") of the several underwriters
(collectively, the "Underwriters"), pursuant to which, among other matters, the
Underwriters have agreed to purchase 4,500,000 (5,175,000 if the over-allotment
is exercised) units ("Units") of the Company. Each Unit consists of one ordinary
share, par value $.001 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 January __, 2007 ("Prospectus") comprising
part of the Company's Registration Statement on Form F-1 (File No.
333-134459) under the Securities Act of 1933, as amended ("Registration
Statement"), declared effective on January __, 2007 ("Effective Date").
WHEREAS, the Existing Shareholders have agreed as a condition of the
sale of the Units to deposit its Ordinary Shares of the Company, as set forth
opposite its name in Exhibit A attached hereto (collectively "Escrow Shares"),
in escrow as hereinafter provided.
WHEREAS, the Company has entered into a Warrant Purchase Agreement
with the Existing Shareholders, dated January __, 2007 ("Warrant Agreement"),
pursuant to which the Existing Shareholders have agreed to purchase 900,000
warrants (the "Founding Director Warrants") in a private placement transaction;
WHEREAS, the Existing Shareholders have agreed as a condition of the
sale of the Founding Director Warrants to deposit its Founding Director
Warrants, as set forth opposite its name in Exhibit B attached hereto
(collectively "Escrow Warrants" and together with the Escrow Shares, "Escrow
Securities");
WHEREAS, the Company and the Existing Shareholders 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 Existing Shareholders
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
Existing Shareholders shall deliver to the Escrow Agent a certificate
representing their respective Escrow Securities, to be held and disbursed
subject to the terms and conditions of this Agreement. The Existing Shareholders
acknowledge that the certificates representing their respective 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) ("Escrow
Period"), on which date it shall, upon written instructions from an Existing
Shareholder, disburse Escrow Shares to such Existing Shareholder; 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 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 such time that the Company consummates a Business
Combination (as such term is defined in the Registration Statement); 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 EXISTING SHAREHOLDER 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 Existing Shareholders shall retain all of their rights as Shareholders of
the Company 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 Existing Shareholders, 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) upon the dissolution and liquidation of an Existing Shareholder and
the distribution of assets to its partners; (ii) by gift to a immediate family
member of an Existing Shareholder's partners or to a trust, the beneficiary of
which is a partner of an Existing Shareholder or a member of the immediate
family of an Existing Shareholder's partners, (iii) by virtue of the laws of
descent and distribution upon death of any partner of an Existing Shareholder,
or (iv) 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 of the Insider Letter signed by an Existing Shareholder
transferring the Escrow Securities. During the Escrow Period, the Existing
Shareholders shall not pledge or
grant a security interest in the Escrow Securities or grant a security interest
in its rights under this Agreement.
4.4 INSIDER LETTERS. The Existing Shareholders have executed a letter
agreement with the Representative and the Company, dated as indicated on Exhibit
A hereto, and which is filed as an exhibit to the Registration Statement
("Insider Letter"), respecting the rights and obligations of such Existing
Shareholders 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 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. 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 Existing Shareholders 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.
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 Existing Shareholders hereby
acknowledge 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:
If to the Company, to:
ChinaGrowth South Acquisition Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
If to an Existing Shareholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
A copy of any notice sent hereunder shall be sent to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 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 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.
[REMAINDER 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.
CHINAGROWTH SOUTH
ACQUISITION CORPORATION
By: ___________________________
Name:
Title:
EXISTING SHAREHOLDERS:
Global Vestor Capital Partners LLC
By: ___________________________
Name:
Title:
Chum Capital Group Limited
By: ___________________________
Name:
Title:
Guorun Group Limited
By: ___________________________
Name:
Title:
Venture Link Assets Limited
By: ___________________________
Name:
Title:
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: ___________________________
Name:
Title:
EXHIBIT A
Name and Address of Number Share Date of
Existing Shareholder of Shares Certificate Number Insider Letter
-------------------- --------- ------------------ --------------
Guorun Group Limited 270,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Venture Link Assets Limited 180,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Chum Capital Group Limited 337,500
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Global Vestor Capital Partners LLC 337,500
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
EXHIBIT B
Number of
Name and Address of Founding Director
Existing Shareholder Warrants
-------------------- -----------------
Guorun Group Limited 180,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Venture Link Assets Limited 180,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Chum Capital Group Limited 180,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chemical Industry Park
Shanghai, China 201417
Global Vestor Capital Partners LLC 360,000
c/o ChinaGrowth South Acquisition
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇