FORM OF SECURITIES ESCROW AGREEMENT
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FORM OF SECURITIES ESCROW AGREEMENT
THIS SECURITIES ESCROW AGREEMENT, dated as of May , 2008 (the "Agreement"), by and among VANTAGE DRILLING COMPANY, a Cayman Islands exempted company (the "Company"), the undersigned parties listed under Initial Stockholders on the signature page hereto (collectively, the "Initial Stockholders") and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Escrow Agent").
WHEREAS, the Company has entered into a merger agreement, dated March 31, 2008 (the "Merger Agreement") with Vantage Energy Services, Inc. ("VES") and a transitory merger subsidiary of the Company ("Merger Sub"), pursuant to which the Merger Sub will be merged with and into VES with the effect that the outstanding units of VES will be exchanged for units (the "Units") of the Company. Each Unit consists of one share of the Company's Common Stock, par value 0.001 per share, and one Warrant, exercisable to purchase one share of Common Stock, all as more fully described in the Company's final Prospectus, dated May , 2008 (the "Prospectus"), comprising part of the Company's Registration Statement on Form F-1/F-4 (File No. 333-147797) under the Securities Act of 1933, as amended (the "Registration Statement"), declared effective on May , 2008;
WHEREAS, the Initial Stockholders have agreed in connection with the Merger Agreement to deposit those shares of Common Stock of the Company (the "Escrow Shares"), Units (the "Escrow Units") and Warrants, including warrants comprising the Units (the "Escrow Warrants") owned by them which are set forth opposite their respective names in Exhibit A attached hereto (the Escrow Shares, Escrow Units and Escrow Warrants being collectively referred to herein as the "Escrow Securities"), in escrow as hereinafter provided; and
WHEREAS, the Company and the Initial Stockholders 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 the mutual covenants, representations and warranties contained herein and intending to be legally bound hereby, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The Company and the Initial Stockholders 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 date of consummation (the "Closing Date") of the business combination contemplated by that certain joint proxy statement/prospectus on behalf of VES and the Company dated May , 2008 (the "Business Combination"), each of the Initial Stockholders shall deliver to the Escrow Agent certificates representing his or her respective Escrow Securities, to be held and disbursed subject to the terms and conditions of this Agreement. Each Initial Stockholder acknowledges that the certificates representing his or her Escrow Securities are legended to reflect the deposit of such Escrow Securities under this Agreement.
3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Escrow Securities until the date that is one year from the date of consummation of a Business Combination (the "Escrow Period"), on which date it shall, upon written instructions from each Initial Stockholder, disburse each of the Initial Stockholder's Escrow Securities to such Initial Stockholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.6 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 Escrow Securities; provided further, that if, after the Company consummates a Business Combination, it (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of its stockholders of such entity 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 being consummated, release the Escrow Shares to the Initial Stockholders 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.
4. Rights of Initial Stockholders in Escrow Securities.
4.1 Voting Rights as a Stockholder. Except as herein provided, the Initial Stockholders shall retain all of their rights as stockholders of the Company during the Escrow Period, including, without limitation, the right 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 Initial Stockholders, 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. 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 Escrow Period, no sale, transfer or other disposition may be made of any or all of the Escrow Securities except, with respect to (a) an entity that is an Initial Stockholder, to any entity controlling, controlled by, or under common control with, such Initial Stockholder, and (b) with respect to an Initial Stockholder who is an individual, (i) to a member of Initial Stockholder's immediate family or to a trust, the beneficiary of which is an Initial Stockholder or a person related to an Initial Stockholder's by blood, marriage or adoption, or (ii) by virtue of the laws of descent and distribution upon death of any Initial Stockholder; 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 the Initial Stockholder transferring the Escrow Securities. During the Escrow Period, no Initial Stockholder shall pledge or grant a security interest in, or any option or other right to acquire, his, her or its Escrow Securities or grant a security interest in his, her or its rights under this Agreement.
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
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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 legal counsel 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 Initial Stockholders 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 and approved by Deutsche Bank, which approval will not be unreasonably withheld, conditioned or delayed, the Escrow Securities held hereunder. If no new escrow agent is so appointed within the sixty (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 Company and a majority of the Initial Stockholders, 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 May 24, 2007, by and between VES 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.
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 for contracts made and to be wholly performed within such state, without giving effect to conflicts of law principles that would result in the application of substantive laws of another jurisdiction. Each of the parties 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
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Xxxxxx Xxxxxx Xxxxxxxx Xxxxx for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
6.2 Entire Agreement. This Agreement together with the Insider Letters and Warrants as referenced herein contain 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 by Deutsche Bank.
6.3 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.4 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.
6.5 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:
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| Vantage Drilling Company c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 Attn: Xxxx X. Xxxxx, Chief Executive Officer |
If to a Stockholder, to his or her address set forth in Exhibit A;
And if to the Escrow Agent, to:
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| Continental Stock Transfer & Trust Company 00 Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxx X. Xxxxxx, Chairman |
A copy of any notice sent hereunder shall be sent to:
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| Ellenoff Xxxxxxxx & Schole LLP 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxxx, Esq. |
and:
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| Xxxxxx and Xxxxxx c/o M&C Corporate Services Limited PO Box 309GT, Xxxxxx House South Church Street, Xxxxxx Town Grand Cayman, Cayman Islands Attn: Xxxxxxx Xxxxxxx, Esq. |
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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.
6.6 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(s) specified in the Prospectus.
6.7 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.
| VANTAGE DRILLING COMPANY | |||
By: |
Xxxx X. Xxxxx Director, Chief Executive Officer |
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INITIAL STOCKHOLDERS: |
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Xxxx X. Xxxxx |
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Xxxxxxxxxxx X. XxXxxxxx |
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Xxxxx X. Xxxxxxx M. |
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Xxxxxxx X. Xxxxxxxxx |
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Xxxx X.X. X'Xxxxx |
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Xxxx Xxxxxxx |
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| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
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By: |
Name: Title: |
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EXHIBIT A
ESCROW SECURITIES DEPOSITED
BY EACH INSIDE STOCKHOLDER
| Name of Initial Stockholder |
Address |
Number of Shares |
Number of Units |
Number of Warrants |
||||
|---|---|---|---|---|---|---|---|---|
| Xxxx X. Xxxxx | c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
2,205,000 | 105,000 (consisting of 105,000 shares of common stock and 105,000 warrants) |
945,000 | ||||
Xxxxxxxxxxx X. XxXxxxxx |
c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
1,134,000 |
54,000 (consisting of 54,000 shares of common stock and 54,000 warrants) |
486,000 |
||||
Xxxxx X. Xxxxxxx M. |
c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
1,134,000 |
54,000 (consisting of 54,000 shares of common stock and 54,000 warrants) |
486,000 |
||||
Xxxxxxx X. Xxxxxxxxx |
c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
1,134,000 |
54,000 (consisting of 54,000 shares of common stock and 54,000 warrants) |
486,000 |
||||
Xxxx X.X. X'Xxxxx |
c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
1,134,000 |
54,000 (consisting of 54,000 shares of common stock and 54,000 warrants) |
486,000 |
||||
Xxxx Xxxxxxx |
c/o Vantage Energy Services, Inc. 000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
1,134,000 |
54,000 (consisting of 54,000 shares of common stock and 54,000 warrants) |
486,000 |
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FORM OF SECURITIES ESCROW AGREEMENT
