STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of ____________, 2004
("Agreement"), by and among ARPEGGIO ACQUISITION CORPORATION, a Delaware
corporation ("Company"), XXXX X. XXXXXXXXX, THE XXXXXXXXX 1991 CHILDREN'S TRUST,
XXXXXXX X. XXXXXXX, XXXXX X. XXXXXX, XXXXX X. XXXXX, XXX XXXXX and XXXXXX XXXXXX
(collectively "Initial Stockholders") and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a New York corporation ("Escrow Agent").
WHEREAS, the Company has entered into an Underwriting
Agreement, dated _____________, 2004 ("Underwriting Agreement"), with
EarlyBirdCapital, Inc. ("EBC") acting as representative of the several
underwriters (collectively, the "Underwriters"), pursuant to which, among other
matters, the Underwriters have agreed to purchase 6,000,000 units ("Units") of
the Company. Each Unit consists of one share of the Company's Common Stock, par
value $.0001 per share, and two Warrants, each Warrant to purchase one share of
Common Stock, all as more fully described in the Company's final Prospectus,
dated ____________, 2004 ("Prospectus") comprising part of the Company's
Registration Statement on Form S-1 (File No. 333-114816) under the Securities
Act of 1933, as amended ("Registration Statement"), declared effective on
______________, 2004 ("Effective Date").
WHEREAS, the Initial Stockholders have agreed as a condition
of the sale of the Units to deposit their shares of Common Stock of the Company,
as set forth opposite their respective names in Exhibit A attached hereto
(collectively "Escrow Shares"), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Stockholders desire that
the Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed
as hereinafter provided.
IT IS AGREED:
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 Shares. On or before the Effective Date, each of
the Initial Stockholders shall deliver to the Escrow Agent certificates
representing his respective Escrow Shares, to be held and disbursed subject to
the terms and conditions of this Agreement. Each Initial Stockholder
acknowledges that the certificate representing his Escrow Shares is legended to
reflect the deposit of such Escrow Shares under this Agreement.
3. Disbursement of the Escrow Shares. The Escrow Agent shall hold the
Escrow Shares until the third anniversary of the Effective Date ("Escrow
Period"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder's Escrow Shares to such
Initial Stockholder; 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 the Escrow Agent shall promptly
destroy the certificates representing the Escrow Shares and; provided further,
that if, after the Company consummates a Business Combination (as such term is
defined in the Registration Statement), it (or the surviving entity)
subsequently consummates a liquidation, merger, stock exchange or other similar
transaction which results in all of the 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, that such transaction is then being
consummated, and release the Escrow Shares to the Initial Stockholders 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 Shares in accordance with this Section 3.
4. Rights of Initial Stockholders in Escrow Shares.
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 Initial Stockholders shall retain all of their rights as
stockholders 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 Initial Stockholders, 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 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
Shares except (i) by gift to a member of Initial Stockholder's immediate family
or to a trust, the beneficiary of which is an Initial Stockholder or a member of
an Initial Stockholder's immediate family, (ii) by virtue of the laws of descent
and distribution upon death of any Initial Stockholder, 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 and of the
Insider Letter signed by the Initial Stockholder transferring the Escrow Shares.
During the Escrow Period, the Initial Stockholders shall not pledge or grant a
security interest in the Escrow Shares or grant a security interest in their
rights under this Agreement.
4.4 Insider Letters. Each of the Initial Stockholders has
executed a letter agreement with EBC 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 Initial
Stockholder 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 Shares 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
2
determine ownership or disposition of the Escrow Shares or it may deposit the
Escrow Shares with the clerk of any appropriate court or it may retain the
Escrow Shares 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 Shares 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 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, the Escrow Shares 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 Shares 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.
6.2 Third Party Beneficiaries. Each of the Initial
Stockholders 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 EBC.
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.
3
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:
Arpeggio Acquisition Corporation
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
If to a Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
A copy of any notice sent hereunder shall be sent to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
and:
EarlyBirdCapital, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Chairman
and:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
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 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.
4
WITNESS the execution of this Agreement as of the date first
above written.
ARPEGGIO ACQUISITION CORPORATION
By: ______________________________
Xxxx X. Xxxxxxxxx, Chairman
INITIAL STOCKHOLDERS:
---------------------------
Xxxx X. Xxxxxxxxx
XXXXXXXXX 1991 CHILDREN'S TRUST
By:___________________________
Name:
Title:
---------------------------
Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxx
---------------------------
Xxx Xxxxx
---------------------------
Arnaud Ajdler
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:________________________________
Name:
Title:
5
EXHIBIT A
Name and Address of Number Stock Date of
Initial Stockholder of Shares Certificate Number Insider Letter
------------------- --------- ------------------ --------------
Xxxx X. Xxxxxxxxx 1,080,000 1, 8 April 14, 2004
Arpeggio Acquisition Corporation
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10022
Xxxxxxxxx 1991 Childrens Trust 120,000 2, 9 April 14, 2004
c/o Xxxx Xxxxxxxxx
Arpeggio Acquisition Corporation
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxxxx 60,000 3, 10 April 14, 2004
c/o AD OPT Technologies, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx, Xxxxxx H3V 1H8
Xxxxx X. Xxxxxx 60,000 4, 11 April 14, 2004
c/o Vector Aerospace Corporation
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Xxxxx X. Xxxxx 60,000 5, 12 April 14, 2004
c/o JGD Management Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxx 60,000 6, 13 April 14, 2004
000 X. Xxxxxx Xxx., Xxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Arnaud Ajdler 60,000 7, 14 April 14, 2004
c/o Arpeggio Acquisition Corporation
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
