___, 2005
Exhibit 10.2
___, 2005
Shine Media Acquisition Corporation
Rockefeller Center
1230 Avenue of the Americas, 7th Floor
New York, NY 10020
Attn: Richard L. Chen
ThinkEquity Partners, LLC
600 Montgomery Street, 8th Floor
San Francisco, CA 94111
Attn:
| Re: | Initial Public Offering |
Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) between Shine Media Acquisition Corp., a Delaware corporation (the “Company”), and ThinkEquity Partners LLC, as Representative (the “Representative”) of the several underwriters named on Schedule I thereto (the “Underwriters”) relating to an underwritten initial public offering (the “IPO”) of the Company’s units, each comprised of one share of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), and one warrant, which is exercisable for one share of Common Stock. Capitalized terms used herein are defined in paragraph 11 hereof.
In order to induce the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned as a stockholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. If the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of the Company’s Common Stock owned by him or her (including Insider Shares and any other shares of Common Stock acquired in the IPO or aftermarket) in accordance with the majority of the votes cast by the holders of the IPO Shares.
2. In the event that the Company fails to consummate a Business Combination within 18 months from the effective date (“Effective Date”) of the registration statement relating to the IPO, or 24 months under the circumstances described in the prospectus relating to the IPO, the first to occur of such dates, the “Transaction Failure Date”, the undersigned will take all reasonable actions within his power to (i) cause the Trust Account to be liquidated and distributed to the holders of the IPO Shares as soon as practicable but in no event later than 60 (sixty) calendar days after the Transaction Failure Date and (ii) cause the Company to dissolve and liquidate as soon as practicable (the earliest date on which the condition in
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clauses (i) and (ii) are both satisfied being the “Liquidation Date”). In such event, the undersigned hereby waives any and all right, title, interest or claim of any kind in or to any liquidating distributions by the Company, including, without limitation, any distribution of the Trust Account as a result of such liquidation with respect to his Insider Shares (“Claim”) and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The undersigned agrees to indemnify and hold harmless the Company jointly and severally with David Y. Chen against any and all loss, liability, claims, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) which the Company may become subject as a result of any claim by any vendor or other person who is owed money by the Company for services rendered or products sold or any claim by any target business but only to the extent necessary to ensure that such loss, liability, claim, damage or expense does not reduce the amount in the Trust Account.
3. In order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present to the Company for its consideration, prior to presentation to any other person or entity, those opportunities to acquire an operating business the undersigned reasonably believes are suitable for the Company, until the earlier of the consummation by the Company of a Business Combination, the liquidation of the Company or until such time as the undersigned ceases to be an officer or director of the Company, subject to any fiduciary obligations the undersigned might have arising from a fiduciary relationship established prior to the establishment of a fiduciary relationship with us.
4. The undersigned acknowledges and agrees that the Company will not consummate any Business Combination which involves a company which is affiliated with any of the Insiders unless the Company obtains an opinion from an independent investment banking firm reasonably acceptable to ThinkEquity that the business combination is fair to the Company’s stockholders from a financial perspective.
5. Neither the undersigned, any member of the family of the undersigned, nor any Affiliate of the undersigned will be entitled to receive and will not accept any finder’s fee or any other compensation for services rendered to the Company prior to or in connection with the consummation of the Business Combination; provided that commencing on the effective date of the IPO, Enjoy Media (Hong Kong) Limited, an affiliate of the Company’s chairman and chief executive officer (“Related Party”), shall be allowed to charge the Company $10,000 per month to compensate it for the Company’s use of the Related Party’s office space and certain technology and administrative and secretarial services. The undersigned shall also be entitled to reimbursement from the Company for his or her out-of-pocket expenses incurred in connection with seeking and consummating a Business Combination.
6. Neither the undersigned, any member of the family of the undersigned, nor any Affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any
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other compensation in the event the undersigned, any member of the family of the undersigned or any Affiliate of the undersigned originates a Business Combination.
7. The undersigned will escrow his Insider Shares for the three-year period commencing on the Effective Date, subject to the terms of a Stock Escrow Agreement which the Company will enter into with the undersigned and an escrow agent acceptable to the Company.
8. The undersigned agrees to be the Chief Financial Officer and Secretary of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company. The undersigned’s biographical information furnished to the Company and ThinkEquity and attached hereto as Exhibit A is true and accurate in all respects, does not omit any material information with respect to the undersigned’s background and contains all of the information required to be disclosed pursuant to Section 401 of Regulation S-K, promulgated under the Securities Act of 1933, as amended. The undersigned’s Questionnaire furnished to the Company and ThinkEquity and annexed as Exhibit B hereto is true and accurate in all respects. The undersigned represents and warrants that:
(a) he or she is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction;
(b) he or she has never been convicted of or pleaded guilty to any crime (i) involving any fraud or (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and he is not currently a defendant in any such criminal proceeding; and
(c) he or she has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
9. The undersigned has full right and power, without violating any agreement by which he or she is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this letter agreement and to serve as the Chief Financial Officer and Secretary of the Company.
10. The undersigned authorizes any employer, financial institution, or consumer credit reporting agency to release to ThinkEquity and its legal representatives or agents (including any investigative search firm retained by ThinkEquity) any information they may have about the undersigned’s background and finances (“Information”), solely for the purposes of the Company’s IPO. Neither ThinkEquity, nor its agents, shall be violating the undersigned’s right of privacy in any manner in requesting and obtaining the Information and the undersigned hereby releases them from liability for any damage whatsoever in that connection.
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11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital stock exchange, asset or stock acquisition, reorganization or otherwise, of one or more operating businesses in the media and advertising industry in China selected by the Company; (ii) “Insiders” shall mean all officers, directors, advisors and stockholders of the Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the Company owned by an Insider prior to the IPO; and (iv) “IPO Shares” shall mean the shares of Common Stock issued in the Company’s IPO.
12. This letter agreement shall be binding on the undersigned and its respective successors and assigns.
13. This letter agreement shall be governed by and interpreted and construed in accordance with the laws of the State of New York applicable to contracts formed and to be performed entirely within the State of New York, without regard to the conflicts of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of another jurisdiction.
14. The undersigned hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this letter 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 (each, a “New York Court”), and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The undersigned hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. The undersigned has appointed as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this letter agreement or the transactions contemplated hereby which may be instituted in any New York Court. Such appointment shall be irrevocable. The undersigned represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the undersigned.
15. No term or provision of this letter agreement may be amended, changed, waived, altered or modified except by written instrument executed and delivered by the party against whom such amendment, change, waiver, alteration or modification is to be enforced.
___________________________________
Richard L. Chen
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EXHIBIT A
[Insider’s biographical information]
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EXHIBIT B
[Insider’s Questionnaire]
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