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Exhibit 10.2    
    


 
 

SECURITIES ESCROW AGREEMENT    
    


        This Securities Escrow Agreement (this "Agreement") is made as
of                        , 2008, by and among Third Wave
Acquisition Corp., a Delaware corporation (the "Company"), each of the parties set forth on Exhibit A hereto (collectively, the
"Private Investors"), and American Stock Transfer & Trust Company, a New York corporation (the "Escrow
Agent"). 


        WHEREAS,
the Company has entered into an Underwriting Agreement, dated                        , 2008 (the "Underwriting Agreement"), with Deutsche
Bank Securities Inc. ("Deutsche Bank") acting as representative of the several underwriters (collectively, the
"Underwriters"), pursuant to which, among other matters, the Underwriters have agreed to purchase 35,000,000 units (the
"Units") of the Company's securities in connection with the Company's initial public offering (the
"IPO") of units. Each Unit consists of one share of the Company's common stock, par value $0.001 per share ("Common
Stock"), and one warrant (a "Warrant") exercisable to purchase one share of Common Stock, all as more fully described in the
Company's final Prospectus dated                        , 2008, comprising part of the Company's Registration Statement on
Form S-1 (File No. 333-147524) under the
Securities Act of 1933, as amended (the "Registration Statement"), declared effective
on                        , 2008 (the "Effective
Date"); 


        WHEREAS,
the Company and the Private Investors have entered into that certain Founder Unit Subscription Agreement, dated as of November 13, 2007 (the
"Founder Unit Subscription Agreement"), and the Company, BSS Third Wave Investors LLC and Arrow Third Wave LLC have entered into that certain Sponsor
Warrants and Co-Investment Units Subscription Agreement, dated as of November 16, 2007 (the "Warrant and Unit Subscription Agreement"
and, together with the Founder Unit Subscription Agreement, the "Subscription Agreements"); 


        WHEREAS,
the Private Investors have agreed as a condition of the Underwriters' obligation to purchase the Units pursuant to the Underwriting Agreement to deposit the
Co-Investment Units (as defined in the Warrant and Unit Subscription Agreement, the "Escrow Co-Investment Units"), the Sponsor
Warrants (as defined in the Warrant and Unit Subscription Agreement, the "Escrow Warrants") and the Founder Units (as defined in the Founder Unit
Subscription Agreement, the "Escrow Founder Units" and, together with the Escrow Co-Investment Units, the "Escrow
Units"; the Escrow Units and the Escrow Warrants being referred to herein as the "Escrow Securities") purchased, and with
respect to the Co-Investment Units, to be purchased, by the Private Investors pursuant to the Subscription Agreements, which are set forth opposite their respective names in  Exhibit A
attached hereto, in escrow as hereinafter provided; and 



        WHEREAS,
the Company and the Private Investors desire that the Escrow Agent accept the Escrow Securities, in escrow, to be held and disbursed as hereinafter provided. 


        NOW,
THEREFORE, in consideration of the premises and mutual covenants, representations and warranties contained herein and intending to be legally bound hereby, the parties hereto agree
as follows: 


        Section 1.    Appointment of Escrow Agent.    The Company and the Private Investors 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. 


        Section 2.    Deposit of Escrow Securities.    



        2.1    Founder Units.    On or before the Effective Date, each of the Private Investors shall deliver to the Escrow
Agent certificates representing such Private Investor's respective Escrow 



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Founder
Units as set forth opposite their respective names on Exhibit A hereto, which certificates shall remain in the name of such Private Investor, to be held and disbursed subject to the
terms and conditions of this Agreement. Each Private Investor acknowledges that the certificates representing such Private Investor's Escrow Founder Units are legended to reflect the deposit of such
Escrow Securities under this Agreement. 


        2.2    Sponsor Warrants.    Promptly following the consummation of the IPO, each of the Private Investors shall
deliver to the Escrow Agent certificates representing such Private Investor's respective Escrow Warrants as set forth opposite their respective names on Exhibit A hereto, which certificates
shall remain in the name of such Private Investor, to be held and disbursed subject to the terms and conditions of this Agreement. Each Private Investor acknowledges that the certificates representing
such Private Investor's Escrow Warrants are legended to reflect the deposit of such Escrow Securities under this Agreement. 



        2.3    Co-Investment Units.    Promptly following the consummation of a Business Combination (as such term
is defined in the Registration Statement), each of the Private Investors shall deliver to the Escrow Agent certificates representing such Private Investor's respective Escrow Co-Investment
Units as set forth opposite their respective names on Exhibit A hereto, which certificates shall remain in the name of such Private Investor, to be held and disbursed subject to the terms and
conditions of this Agreement. Each Private Investor acknowledges that the certificates representing such Private Investor's Escrow Co-Investment Units are legended to reflect the deposit
of such Escrow Securities under this Agreement. 




        Section 3.    Disbursement of the Escrow Securities.    The Escrow Agent shall hold the Escrow Warrants until
the date of consummation of a Business Combination by the Company (the "Warrants Escrow Period") and the Escrow Agent shall hold the Escrow Units until
the date that is 180 days after the date of the consummation of a Business Combination by the Company (the "Units Escrow Period" and, together
with the Warrants Escrow Period, the "Escrow Period"), on which respective dates the Escrow Agent shall, upon written instructions from the Company or
counsel to the Company, disburse each of the Private Investor's proper Escrow Securities to such Private Investor; 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 Warrants Escrow Period or the Units Escrow Period, as applicable, then the Escrow Agent shall promptly destroy
the certificates representing the Escrow Securities; provided further, that if, after the Company consummates a Business Combination, the Company (or the surviving entity) subsequently consummates a
liquidation, merger, stock exchange, asset or stock acquisition, exchangeable share transaction, joint venture or other similar transaction which results in all of the Company's stockholders having
the right to exchange their shares of Common Stock for cash, securities or other property, then the Escrow Agent will, upon receipt of a certificate, executed by the Chief Executive Officer or Chief
Financial Officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated, release the Escrow Units to the Private Investors upon
consummation of the transaction so that they can similarly participate. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Securities in
accordance with this Section 3. 


        Section 4.    Rights of Private Investors in Escrow Securities.    



        4.1    Voting Rights as a Stockholder.    Subject to the terms of the Insider Letter described in Section 4.4
hereof, and except as herein provided, the Private Investors shall retain all of their rights as stockholders of the Company during the Escrow Period to vote their Escrow Securities. 


        4.2    Dividends and Other Distributions in Respect of the Escrow Securities.    During the Escrow Period, all
dividends payable in cash with respect to the Escrow Securities shall be paid to the Private Investors, but all dividends payable in stock or other non-cash property (the
"Non-Cash Dividends") shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. 



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As
used herein, the term "Escrow Securities" shall be deemed to include the Non-Cash Dividends distributed thereon, if any. 


        4.3    Restrictions on Transfer.    During the Warrants Escrow Period, no sale, transfer or other disposition may be
made of any or all of the Escrow Warrants and during the Units Escrow Period, no sale, transfer or other disposition may be made of any or all of the Escrow Units, except, in each case,
(a) with respect to a Private Investor that is a legal entity, to any legal entity controlling, controlled by or under common control with, such Private Investor, and (b) with respect to
a Private Investor who is an individual, (i) to a member of Private Investor's immediate family or to a trust, the beneficiary of which is the Private Investor or a person related to a Private
Investor by blood, marriage or adoption (ii) by virtue of the laws of descent and distribution upon death of any Private Investor, or (iii) pursuant to a qualified domestic relations
order; provided, however, that such permitted 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 the Private Investor transferring the Escrow Securities. During the Warrants Escrow Period, no Private Investor shall pledge or grant a security interest in, or any option or
other right to acquire, his, her or its Escrow Warrants or grant a security interest in his, her or its rights under this Agreement. During the Units Escrow Period, no Private Investor shall pledge or
grant a security interest in, or any option or other right to acquire, his, her or its Escrow Units or grant a security interest in his, her or its rights under this Agreement. 


        4.4    Insider Letters.    Each of the Private Investors has executed a letter agreement with Deutsche Bank and the
Company, dated as indicated on Exhibit A hereto, and which is filed as an exhibit to the Registration Statement (each, an "Insider Letter"),
respecting the rights and obligations of such Private Investor in certain events, including, but not limited to, the liquidation of the Company. 




        Section 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 reasonable 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 



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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 reasonable expenses paid or incurred by it in the administration of its duties
hereunder including, but not limited to, all legal 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 Private Investors
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 submit an application to deposit the Escrow Securities with the United States District Court for the Southern District of New York,
provided the Escrow Agent provides notice of such deposit to the Company and the Private Investors in accordance with Section 6.7 hereof 



        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 Company and a majority of the Private Investors, 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. 



        5.8    Waiver.    The Escrow Agent hereby waives any and all right, title, interest or claim of any kind
("Claim") in or to any distribution of the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof,
by and between the Company and the Escrow Agent as trustee thereunder), and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any
reason whatsoever. 




        Section 6.    Miscellaneous.    



        6.1    Governing Law.    This Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York applicable to contracts executed in and to be performed in that State, including, without limitation, Sections 5-1401 and 5-1402 of the New York General Obligations
Law and the New York Civil Practice Laws and Rules 327(b). The parties hereto agree 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 the parties hereto irrevocably submit to such
jurisdiction, which jurisdiction shall be exclusive. The parties hereto hereby waive any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. 



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        6.2    Waiver of Trial by Jury.    Each party hereto hereby irrevocably and unconditionally waives the right to a
trial by jury in any action, suit, counterclaim or other proceeding (whether based on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the parties in the negotiation, administration, performance or enforcement hereof. 


        6.3    Third Party Beneficiaries.    Each of the Private Investors hereby acknowledges 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 Deutsche Bank. 



        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 to be charged and Deutsche Bank. 


        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. Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which
it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which the Escrow Agent is a party, shall be and become the successor escrow agent under this Escrow Agreement and shall have and succeed to the
rights, powers, duties, obligations, immunities and privileges of the Escrow Agent, without the execution or filing of any instrument or paper or the performance of any further act. 


        6.7    Notices.    Any notice or other communication required or which may be given hereunder shall be in writing and
shall be sent by certified or registered mail, by private national courier service (return receipt requested, postage prepaid), by personal delivery or by facsimile transmission. Such notice or
communication shall be deemed given (a) if mailed, two days after the date of mailing, (b) if sent by national courier service, one business day after being sent, (c) if delivered
personally, when so delivered, or (d) if sent by facsimile transmission, on the second business day after such facsimile is transmitted, in each case as follows: 



If
to the Company, to: 



Third
Wave Acquisition Corp.

591 West Putnam Avenue

Greenwich, Connecticut 06830

Attn: Chief Executive Officer

Fax: (203) 422-7700 




If
to a Private Investor, to his or her address set forth in Exhibit A. 



And
if to the Escrow Agent, to: 



American
Stock Transfer & Trust Company

59 Maiden Lane

New York, New York 10038

Attn: George Karfunkel

Fax: (718) 331-1852 





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A
copy of any notice sent hereunder shall be sent to: 



Skadden,
Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, CA 90071

Attn: Gregg A. Noel, Esq.

Fax: (213) 687-5600 


Deutsche
Bank Securities Inc.

60 Wall Street

New York, NY 10005

Attn: Syndicate Manager

Fax: (212) 797-9344 


Debevoise &
Plimpton LLP

919 Third Avenue

New York, NY 10022

Attn: Peter J. Loughran

Fax: (212) 909-6836 





        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 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 specified in the Registration Statement. 


        6.9    Counterparts.    This Agreement may be executed in several counterparts, each one of which may be delivered by
facsimile transmission and each of which shall constitute an original and together shall constitute but one instrument. 



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        IN
WITNESS WHEREOF, the undersigned have executed this Securities Escrow Agreement as of the date first written above. 



	 	 	THIRD WAVE ACQUISITION CORP.
	

 	
 	

By:	

    

	 	 	 	Name: Barry S. Sternlicht
	 	 	 	Title: Chief Executive Officer
	

 	
 	

AMERICAN STOCK TRANSFER & TRUST COMPANY
	

 	
 	

By:	

    

	 	 	Name:
	 	 	Title:
	

 	
 	
PRIVATE INVESTORS:
	

 	
 	

BSS THIRD WAVE INVESTORS LLC
	

 	
 	

By:	

    

	 	 	Name:
	 	 	Title:
	

 	
 	

ARROW THIRD WAVE LLC
	

 	
 	

By:	

    

	 	 	Name:
	 	 	Title:
	

 	
 	

    
 Harald Ludwig
	

 	
 	

    
 Hamilton South
	

 	
 	

    
 Strauss Zelnick









 
 

EXHIBIT A    
    
    ESCROW SECURITIES DEPOSITED
  BY EACH PRIVATE INVESTOR    




	Name and Address of

Private Investor
 
	 	Date of

Insider

Letter
	 	Number of

Founder Units
	 	Number of

Co-Investment

Units
	 	Number of

Sponsor Warrants

	BSS Third Wave Investors LLC

    591 West Putnam Avenue

    Greenwich, Connecticut 06830	 	 	 	7,433,673	 	2,625,000	 	5,850,000
	

Arrow Third Wave LLC

    499 Park Avenue

    New York, New York 10022	
 	

 	
 	

2,477,891	
 	

875,000	
 	

1,950,000
	

Harald Ludwig	
 	

 	
 	

50,312	
 	

—	
 	

—
	

Hamilton South	
 	

 	
 	

50,312	
 	

—	
 	

—
	

Strauss Zelnick	
 	

 	
 	

50,312	
 	

—	
 	

—













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Exhibit 10.2


SECURITIES ESCROW AGREEMENT

EXHIBIT A ESCROW SECURITIES DEPOSITED BY EACH PRIVATE INVESTOR