WARRANT ESCROW AGREEMENT
Exhibit
10.12
WARRANT
ESCROW AGREEMENT, dated as of _____________, 2007
(“Agreement”), by and among POLARIS ACQUISITION CORPORATION, a Delaware
corporation (“Company”), XXXXX BUSINESS VENTURES XX, LLC, PRAESUMO PARTNERS,
LLC, XXXXX HOLDINGS, LLC, VINCO VINCERE VICI VICTUM LLC, XXXXX XXXXXX, MERITAGE
FARMS LLC, CLOOBECK COMPANIES, LLC, GRANITE CREEK PARTNERS, L.L.C., ROXBURY
CAPITAL GROUP LLC INCENTIVE SAVINGS PLAN, ALERION EQUITIES, LLC and ODESSA,
LLC (collectively “Insider Purchasers”) and ________ STOCK TRANSFER & TRUST
COMPANY, a
New
York corporation (“Escrow
Agent”).
WHEREAS,
the Company has received a binding commitment
(“Subscription Agreements”)
from the
Insider Purchasers to purchase an aggregate of 5,250,000 warrants (“Insider
Warrants”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated __________, 2007
(“Underwriting Agreement”), with Lazard Capital Markets LLC (“Lazard”) acting as
representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
18,000,000 units (“Units”) of the Company. Each Unit consists of one share of
the Company’s common stock, par value $.0001 per share (“Common Stock”), and one
Warrant to purchase one share of Common Stock, all as more fully described
in
the Company’s final Prospectus, dated _________, 2007 (“Prospectus”) comprising
part of the Company’s Registration Statement on Form S-1
(File No. 333-145759) under the Securities Act of 1933, as amended
(“Registration Statement”), declared effective on ________, 2007 (“Effective
Date”).
WHEREAS,
each Insider Purchaser has agreed as a condition of the sale of the Units to
deposit its Insider Warrants, as set forth opposite its name in Exhibit A
attached hereto (collectively “Escrow Warrants”), in escrow as hereinafter
provided.
WHEREAS,
the Company and the Insider Purchasers desire that the Escrow Agent accept
the
Escrow Warrants, in escrow, to be held and disbursed as hereinafter
provided.
IT
IS
AGREED:
1. Appointment
of Escrow Agent.
The
Company and the Insider Purchasers 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 Warrants.
On or
before the Effective Date, each Insider Purchaser shall deliver to the Escrow
Agent certificates representing its Escrow Warrants, to be held and disbursed
subject to the terms and conditions of this Agreement. Each Insider Purchaser
acknowledges that the certificate representing its Escrow Warrants is legended
to reflect the deposit of such Escrow Warrants under this
Agreement.
3. Disbursement
of the Escrow Warrants.
The
Escrow Agent shall hold the Escrow Warrants until 45 days after the consummation
of a Business Combination (as such term is defined in the Registration
Statement) (“Escrow Period”), on which date it shall, upon written instructions
from each Insider Purchaser, disburse the Insider Purchaser’s Escrow Warrants to
the Insider Purchaser; 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 Warrants. The Escrow
Agent shall have no further duties hereunder after the disbursement or
destruction of the Escrow Warrants in accordance with this
Section 3.
4. Restrictions
on Transfer of Escrow Warrants.
During
the Escrow Period, no sale, transfer or other disposition may be made of any
or
all of the Escrow Warrants except (i) upon
the
dissolution and liquidation of an Insider Purchaser and the distribution of
assets to its members; (ii) by gift to a immediate family member of an Insider
Purchaser’s members or to a trust, the beneficiary of which is a member of the
Insider Purchaser or a member of the immediate family of the Insider Purchaser’s
members, (iii) by virtue of the laws of descent and distribution upon death
of
any member of an Insider Purchaser, or (iv) 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 Subscription Agreement signed by the Insider Purchaser.
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 Warrants 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 Warrants or it may deposit the Escrow Warrants with the clerk of
any
appropriate court or it may retain the Escrow Warrants pending receipt of a
final, nonappealable order of a court having jurisdiction over all of the
parties hereto directing to whom and under what circumstances the Escrow
Warrants 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 Insider
Purchasers 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 Warrants 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 Warrants 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.
5.8 Waiver.
Notwithstanding anything herein to the contrary, 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, 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, without giving
effect to conflicts of law principles that would result in the application
of
the 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 United States District
Court 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 Third
Party Beneficiaries.
The
Insider Purchasers hereby acknowledge 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 Lazard.
6.3 Entire
Agreement.
This
Agreement together with the Insider Letters 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 the charged. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original, and together shall constitute one and the same
instrument.
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.
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:
|
Polaris
Acquisition Corporation
0000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx
Xxx,
Xxx Xxxxxx 00000
Attn:
If
to the
Insider Purchasers, to their addresses set forth in Exhibit A.
and
if to
the Escrow Agent, to:
Contiental Stock
Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
A
copy of
any notice sent hereunder shall be sent to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx
Xxxx Xxxxxx, Esq.
and:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
and:
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxxxxx
X. Xxxxxxx, 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 the 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
and a
liquidation and dissolution of the Company is effectuated.
WITNESS
the execution of this Agreement as of the date first above written.
POLARIS
ACQUISITION CORPORATION
By:
______________________________
INSIDER
PURCHASERS:
XXXXX
BUSINESS VENTURES XX, LLC
By:
______________________________
Name:
Title:
PRAESUMO
PARTNERS, LLC
By:
______________________________
Name:
Title:
XXXXX
HOLDINGS, LLC
By:
______________________________
Name:
Title:
VINCO
VINCERE VICI VICTUM LLC
By:
______________________________
Name:
Title:
______________________________
Xxxxx
Xxxxxx
MERITAGE
FARMS LLC
By:
______________________________
Name:
Title:
CLOOBECK
COMPANIES, LLC
By:
______________________________
Name:
Title:
GRANITE
CREEK PARTNERS, L.L.C.
By:
______________________________
Name:
Title:
ROXBURY
CAPITAL GROUP LLC INCENTIVE SAVINGS PLAN
By:
______________________________
Name:
Title:
ALERION
EQUITIES, LLC
By:
______________________________
Name:
Title:
ODESSA,
LLC
By:
______________________________
Name:
Title:
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
By:________________________________
Name:
Title:
EXHIBIT
A
|
Name
and Address of
Insider
Purchaser
|
Number
of
Warrants
|
Warrant
Number
|
Date
of
Subscription
Agreement
|
