Exhibit
10.1
ESCROW AGREEMENT
ESCROW AGREEMENT
(“Agreement”) dated [Closing Date] by and among CULLEN
INC. HOLDINGS LTD. (“Stockholder”), CULLEN AGRICULTURAL
HOLDING CORP. (“CAH”), and CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, as escrow agent (the “Escrow
Agent”).
Stockholder, CAH, Triplecrown
Acquisition Corp. (“Triplecrown”), the parent of CAH,
Cullen Agricultural Technologies Inc., a wholly owned subsidiary of
Stockholder (“Cullen Agritech”), and CAT Merger Sub,
Inc., a wholly owned subsidiary of CAH (“Merger Sub”),
are the parties to a Agreement and Plan of Reorganization dated as
of September 
,
2009 (the “Merger Agreement”) pursuant to which
Triplecrown has merged with and into CAH and Merger Sub has merged
with and into Cullen Agritech. Capitalized terms used herein that
are not otherwise defined herein shall have the meanings ascribed
to them in the Merger Agreement. Pursuant to the Merger Agreement,
CAH is to be indemnified in certain respects. The parties desire to
establish an escrow fund as collateral security for the
indemnification obligations under the Merger Agreement that is to
consist of [1,588,115] shares of CAH Common Stock to be
deposited by Stockholder (the “Escrow
Shares”).
The parties agree as
follows:
1. (a) Concurrently with the
execution hereof, Stockholder is delivering to the Escrow Agent, to
be held in escrow pursuant to the terms of this Agreement, share
certificates issued in the name of Stockholder representing the
Escrow Shares, together with five (5) share transfer instruments
separate from such certificate executed in blank by Stockholder,
with medallion signature guaranties. The shares of CAH Common Stock
represented by the share certificates so delivered by Stockholder
to the Escrow Agent are herein referred to in the aggregate as the
“Escrow Fund.”
(b) The Escrow Agent hereby agrees
to act as escrow agent and to hold, safeguard and disburse the
Escrow Fund pursuant to the terms and conditions hereof. It shall
treat the Escrow Fund as a trust fund in accordance with the terms
of this Agreement and not as the property of CAH. The Escrow
Agent’s duties hereunder shall terminate upon its
distribution of the entire Escrow Fund in accordance with this
Agreement.
(c) Except as herein provided,
Stockholder and all Permitted Transferees (as hereinafter defined
and, together with Stockholder, the “Owners”) shall
retain all of their rights as stockholders of CAH with respect to
the CAH Common Stock constituting the Escrow Fund during the period
any portion of the Escrow Fund is held by the Escrow Agent (the
“Escrow Period”), including, without limitation, the
right to vote its CAH Common Stock included in the Escrow
Fund.
(d) During the Escrow Period, all
dividends payable in cash with respect to the CAH Common Stock
included in the Escrow Fund shall be paid to the Owners, but all
dividends payable in stock 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 Fund” shall be deemed to include the
Non-Cash Dividends distributed thereon, if any.
(e) During the Escrow Period, no
sale, transfer or other disposition may be made of any or all of
the CAH Common Stock in the Escrow Fund except (i) to a
“Permitted Transferee” (as hereinafter defined), (ii)
by virtue of the laws of descent and distribution upon death of any
Owner, 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. As used in this Agreement, the term “Permitted
Transferee” shall include an entity in which (A) Stockholder
beneficially owns 100% of such entity’s voting and non-voting
equity securities, or (B) Stockholder is a general partner and in
which Stockholder beneficially owns 100% of all capital accounts of
such entity. In connection with and as a condition to each
permitted transfer, the Permitted Transferee shall deliver to the
Escrow Agent an assignment separate from certificate executed by
Stockholder, with medallion signature guaranty, or where
applicable, an order of a court of competent jurisdiction,
evidencing the transfer of shares to the Permitted Transferee,
together with two (2) assignments separate from certificate
executed in blank by the Permitted Transferee, with medallion
signature guaranties, with respect to the shares transferred to the
Permitted Transferee. Upon receipt of such documents, the Escrow
Agent shall deliver to CAH’s transfer agent the
original
share certificate out of which the
assigned shares are to be transferred, together with the executed
share transfer instrument separate from certificate executed by
Stockholder, or a copy of the applicable court order, and shall
request that CAH issue new certificates representing (m) the number
of shares, if any, that continue to be owned by the transferor, and
(n) the number of shares owned by the Permitted Transferee as the
result of such transfer. Stockholder, CAH and the Permitted
Transferee shall cooperate in all respects with the Escrow Agent in
documenting each such transfer and in effectuating the result
intended to be accomplished thereby. During the Escrow Period, no
Owner shall pledge or grant a security interest in such
Owner’s CAH Common Stock included in the Escrow Fund or grant
a security interest in such Owner’s rights under this
Agreement.
2. Indemnification Claims
Procedure .
(a) CAH, acting through the current
or former member or members of CAH’s Board of Directors who
has or have been appointed by CAH to take all necessary actions and
make all decisions on behalf of CAH with respect to its rights to
indemnification under Article VII of the Merger Agreement (the
“Committee”), may make a claim for indemnification
pursuant to the Merger Agreement (“Indemnification
Claim”) against the Escrow Shares in the Escrow Fund by
giving notice (a “Notice”) to Stockholder (with a copy
to the Escrow Agent) specifying (i) the covenant, representation,
warranty, agreement, undertaking or obligation contained in the
Merger Agreement which it asserts has been breached or otherwise
entitles CAH to indemnification and (ii) in reasonable detail, the
nature and dollar amount of any Indemnification C