FORM OF SECURITIES ESCROW AGREEMENT
EX 10.18
FORM OF
SECURITIES ESCROW AGREEMENT
SECURITIES ESCROW AGREEMENT
THIS SECURITIES ESCROW AGREEMENT, dated as of [ ], 2008 (this “Agreement”),
by and among JWL Partners Acquisition Corp., a Delaware corporation (the “Company”), each
of the parties set forth on Exhibit A annexed hereto (collectively, the
“Founders”) and Continental Stock Transfer & Trust Company (the “Escrow Agent”).
WHEREAS, the Company has entered into an Underwriting Agreement, dated [ ], 2008,
with Credit Suisse Securities (USA) LLC acting as the representative (the
“Representative”) of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase 20,000,000 units
of the Company plus an additional 3,000,000 units if the Underwriters exercise their
over-allotment option in full (the “Offering”). The Company’s units (the “Units”)
each consist of one share of the Company’s common stock, par value $0.0001 per share (the
“Common Stock”), and one warrant (the “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-[___]) (the “Registration Statement”) filed under the Securities Act of 1933, as
amended, and declared effective by the Securities and Exchange Commission on [ ], 2008
(the “Effective Date”);
WHEREAS, each of the Founders has agreed, as a condition of the Underwriters’ purchase of the
Units, to deposit its or his Units purchased on February 1, 2008, as set forth opposite each
Founder’s name on Exhibit A attached hereto (the “Founders’ Units”), in escrow as
hereinafter provided; and
WHEREAS, certain of the Founders have agreed, as a condition of the Underwriters’ purchase of
the Units, to purchase 6,000,000 Warrants for $1.00 per Warrant (the “Private Placement
Warrants” and collectively with the Founders’ Units, the shares of Common Stock underlying the
Founders’ Units and the Warrants underlying the Founders’ Units, the “Escrow Securities”)
immediately prior to and subject to the closing of the Offering; and
WHEREAS, the Company and the Founders desire that the Escrow Agent accept the Escrow
Securities, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Company and the Founders 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.
2.1. Founders’ Units. On or about the Effective Date, each of the Founders shall
deliver to the Escrow Agent certificates representing his or its respective Founders’ Units as set
forth opposite their respective names on Exhibit A hereto, which certificates shall remain
in the name of such Founder, to be held and disbursed subject to the terms and conditions of this
Agreement. Each Founder acknowledges that the certificate representing such Founders’ Units bears a
legend
to reflect the deposit of such Founders’ Units under this Agreement.
2.2. Private Placement Warrants. Promptly following the consummation of the
Offering, each of the Founders who has purchased Private Placement Warrants shall deliver to the
Escrow Agent certificates representing such Founder’s respective Private Placement Warrants as set
forth opposite their respective names on Exhibit A attached hereto, which certificates shall remain
in the name of such Founder or such Founder’s Permitted Transferee, as applicable, to be held and
disbursed subject to the terms and conditions of this Agreement. Each Founder who purchased
Private Placement Warrants acknowledges that the certificates representing such Founder’s Private
Placement Warrants shall bear a legend to reflect the deposit of such securities under this
Agreement.
3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Founders’ Units until the
one-year anniversary of the consummation of a Business Combination (as such term is defined in the
Amended and Restated Certificate of Incorporation of the Company) and shall hold the Private
Placement Warrants until the 90th day following the consummation of a Business
Combination (each such period, an “Escrow Period”); provided, however, that if the
over-allotment granted to the Underwriters pursuant to the Underwriting Agreement is not exercised
in full prior to the expiration of the over-allotment option, then the Escrow Agent shall release
to the Company such number of Founders’ Units as directed in writing by the Company for
cancellation. The Company shall promptly provide notice of the consummation of a Business
Combination to the Escrow Agent. Upon the completion of each Escrow Period, the Escrow Agent shall
automatically disburse the applicable Escrow Securities to each Founder upon receipt of written
request therefor from the Company; provided, however, that if the consummation of a Business
Combination takes the form of a merger, stock exchange or other similar transaction which results
in any of the security holders of the Company having the right to exchange their securities for
other securities, then the Escrow Agent shall, upon receipt of a certificate in form reasonably
acceptable to the Escrow Agent, executed by the Chief Executive Officer of the Company, release the
Escrow Securities to the Founders immediately prior and subject to consummation of the Business
Combination so that they can similarly participate, and upon receipt of the securities issued in
respect thereof in connection with the Business Combination, the Founders shall deposit such
securities into escrow with the Escrow Agent for the remainder of the applicable Escrow Periods;
provided further, however, that if, after the Company subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in any of the security holders of
the Company or such entity having the right to exchange their securities for cash, securities or
other property, then the Escrow Agent shall, upon receipt of a certificate in form reasonably
acceptable to the Escrow Agent, executed by the Chief Executive Officer of the Company, that such
transaction is then being consummated, release the Escrow Securities to the Founders immediately
prior and subject to consummation of the transaction so that they can similarly participate. The
Escrow Agent shall act as soon as reasonably possible following the receipt of the certificate, and
shall not be held liable for any delay in sending the Escrow Securities caused by the late receipt
of the certificate. The Escrow Agent shall have no further duties hereunder with respect to the
Escrow Securities after the disbursement or destruction of the Escrow Securities in accordance with
this Section 3.
| 4. | Rights of Founders in Escrow Securities. |
4.1. Rights as a Security Holder. Subject to the terms of their respective Insider
Letters as described in Section 4.4 hereof and except as herein provided, each Founder shall retain
all of its rights as a stockholder of the Company during the Escrow Period, including without
limitation, the right to vote Common Stock subject to this Agreement. The Escrow Agent shall have
no responsibility to determine or verify the contents or limitations of the Insider Letters and
shall be bound only by the terms of this Agreement.
4.2. Dividends and other Distributions in Respect of the Escrow Securities. During the
Escrow Period with respect to the Escrow Securities, all dividends payable in cash with respect to
the Escrow Securities shall be paid to the Founder, 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 and Redemption. During the Escrow Period, no sale,
transfer or other disposition (a “Transfer”) may be made of any or all of the Escrow
Securities by a Founder except (i) by gift to a member of the Founder’s immediate family for estate
planning purposes or to a trust, the beneficiary of which is the Founder or a member of the
Founder’s immediate family, (ii) if the Founder is not a natural person, by gift to a member of the
immediate family of such Founder’s controlling person for estate planning purposes or to a trust,
the beneficiary of which is such Founder’s controlling person or a member of the immediate family
of such Founder’s controlling person, (iii) by virtue of the laws of descent and distribution upon
death of the Founder, (iv) pursuant to a qualified domestic relations order, or (v) by transfer,
with our without consideration, to the officers, directors or other Founders of the Company and,
with respect to GEH Capital, Inc., employees of Clinton Group, Inc., entities controlled by Mr.
Xxxxxx Xxxx, the chief executive officer of Clinton Group, Inc., and funds managed by Clinton
Group, Inc. (each such transferee, a “Permitted Transferee”); provided, however, that such
permitted Transfers may be implemented only upon the respective Permitted Transferee’s written
agreement to be bound by the terms and conditions of this Agreement and of the Insider Letter
signed by such Founder transferring such Escrow Securities and such other documents as the Company
or the Representative may reasonably require. During the Escrow Period, no Founder shall pledge or
grant a security interest in such Founder’s Escrow Securities or grant a security interest in such
Founder’s rights under this Agreement.
4.4. Insider Letters. Each of the Founders has executed a letter agreement with the
Representative and the Company, which has been filed as an exhibit to the Registration Statement
(the “Insider Letter”), with respect to the rights and obligations of such Founders 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 be protected and shall not be liable
for any action taken or omitted by it in good faith and in the exercise of its best judgment
(unless grossly negligent), and may rely conclusively and may act upon any order, notice, demand,
certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other document 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
losses 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 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. In
case any action arising out of this Agreement is brought against the Escrow Agent other than by the
Company, the Company will be entitled to participate therein and, to the extent that it may wish,
to assume the defense thereof, and after notice from the Company to the Escrow Agent of its
election so to assume the defense, the Company will not be liable to the Escrow Agent under this
Section 5.2 for any legal or other expenses subsequently incurred by the Escrow Agent in connection
with the defense thereof. The Escrow Agent shall not, without the prior written consent of the
Company, effect any settlement of any such pending or threatened action hereunder. The provisions
of Sections 5.2 and 5.7 shall survive in the event the Escrow Agent resigns or is discharged
pursuant to Sections 5.5 or 5.6 below and in the event of termination under 6.11 below.
5.3. Compensation. The Escrow Agent shall be entitled to compensation from the
Company in accordance with Schedule I hereto for all services rendered by it hereunder.
5.4. Further Assurances. From time to time on and after the date hereof, the Company
and the Founders 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 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
successor escrow agent is so appointed within the sixty (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 Founders 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 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 willful misconduct.
5.8. Waiver. The Escrow Agent hereby waives any and all right, title, interest or
claim of any kind (each, a “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.
5.9 Standard of Care. The Escrow Agent shall be obligated only to perform the duties
specifically set forth in this Escrow Agreement, which shall be deemed purely ministerial in
nature, and the Escrow Agent shall under no circumstances be deemed to be a fiduciary to any party
hereto or any other person. The parties hereto agree that the Escrow Agent shall not assume any
responsibility for the failure of the parties hereto to perform in accordance with this Escrow
Agreement or any other agreement or document. This Escrow Agreement sets forth all matters
pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrow Agent
shall be inferred from the terms of this Escrow Agreement or any other agreement or document. IN
NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGES OR EXPENSES
ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW
AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
| 6. | Miscellaneous. |
6.1. Governing Law and Consent to Jurisdiction. 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.
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 Founders 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 the Representative.
6.4. Entire Agreement. This Agreement and the Insider Letters and Warrants as
referenced herein contain the entire agreement of the Company and the Founders with respect to the
subject matter hereof, and this Agreement contains the entire agreement as it pertains to the
Escrow Agent and the other parties hereto and, except as expressly provided herein, may not be
changed or modified except by an instrument in writing signed by all parties to this Agreement and
the Representative. This Agreement may be executed in several original or facsimile counterparts,
each one of which shall constitute an original, and together shall constitute but one instrument.
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 hereof.
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 permitted
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:
JWL Partners Acquisition Corp.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx
Fax: (000) 000-0000
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx
Fax: (000) 000-0000
If to a Founder, to his address set forth in Exhibit A.
If to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
A copy of any notice sent hereunder shall be sent to each of:
Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LCD-IBD
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LCD-IBD
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
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 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 (as such term is defined in the Amended and Restated
Certificate of Incorporation of the Company) within the time period specified in the Registration
Statement.
6.9 Disputes. If any disagreement or dispute arises among the Company and the Founders
concerning the meaning or validity of any provision hereunder or concerning any other matter
relating to this Escrow Agreement, the Escrow Agent shall be under no obligation to act, except (i)
with joint written instruction of the Company and the Founders, or (ii) under process or order of
court, and shall sustain no liability for its failure to act pending such process or court order.
6.10 Authorized Signatures. Concurrent with the execution of this Agreement, the
Company will provide a completed certificate of parties authorized to sign on its behalf, in the
form attached hereto as Schedule II.
6.11 Termination. This Agreement shall terminate on the final distribution or
destruction of all of the Escrow Securities in accordance with the terms of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this Securities Escrow Agreement as of
the date first written above.
| JWL PARTNERS ACQUISITION CORP. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Vice Chairman of the Board and Corporate Secretary | |||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS ESCROW AGENT |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FOUNDERS: GEH CAPITAL, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Name: | Xxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
Exhibit A
| Number of Founders’ | Number of Private | |||
| Name and Address of Founder: | Units | Placement Warrants | ||
GEH Capital, Inc. |
2,263,200 | 2,400,000 | ||
0 Xxxx 00xx
Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||||
Xxxxx X. Xxxxx |
1,697,400 | 1,800,000 | ||
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||||
Xxxxxx X. Xxxx |
707,250 | 750,000 | ||
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||||
Xxxxxxx X. Xxxxxx |
707,250 | 750,000 | ||
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||||
Xxxx Xxxxxxx (as to the Founders’ Units) |
282,900 | 300,000 | ||
Xxxx Xxxxxxx Company Defined Contribution Pension Plan and Trust (as to the Private Placement Warrants) 000 Xxxxx Xxxxxx 00xx xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||||
Xxxxx Xxxx |
23,000 | 0 | ||
[Address] |
||||
Xxxxxx X. Xxxxxxx |
23,000 | 0 | ||
[Address] |
||||
Xxxxxx Xxxxxxxx |
23,000 | 0 | ||
[Address] |
||||
Xxxxxx Xxxxxxxxx |
23,000 | 0 | ||
[Address] |
||||
TOTAL: |
5,750,000 | 6,000,000 |
Schedule I — Escrow Agent Fees For Escrow Services
$[___] per month to be paid by the Company to the Escrow Agent commencing upon the consummation of
the Company’s initial public offering of securities.
Schedule II — Authorized Signatories
| Individual’s Name | Title | Signature | ||
Xxxxx X. Xxxxx
|
Chairman of the Board and Chief Executive Officer | |||
Xxxxxx X. Xxxx
|
Vice Chairman and Corporate Secretary | |||
Xxxxxxx X. Xxxxxx
|
Vice Chairman | |||
Xxxxxxx X’Xxxxxx
|
Executive Vice President | |||
Xxxxxxx Xxxxxxxxx
|
Chief Financial Officer |
II-1
