Exhibit 4.6
DATED JULY 12 2006
THE COVENANTORS
AND
VICEROY ACQUISITION CORPORATION
AND
KBC PEEL XXXX LTD.
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LOCK-IN DEED
RELATING TO SHARES AND WARRANTS IN
VICEROY ACQUISITION CORPORATION
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THIS DEED is dated July 2006 and is made AMONG:
(1) The persons whose names are stated in Schedule 1 (each a
"COVENANTOR" and together the "COVENANTORS");
(2) VICEROY ACQUISITION CORPORATION, a corporation organised under the
laws of the State of Delaware pursuant to the Delaware General
Corporation Law, whose principal place of business is 0000 Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000 (the "COMPANY");
and
(3) KBC PEEL XXXX LTD., whose registered office is at 000 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("PEEL XXXX").
WHEREAS
(A) The Company proposes to raise funds by the Placing of the Units for
cash and is proposing to seek the admission of its entire issued
and to be issued share capital and Warrants of the Company to
trading on AIM.
(B) Subject to the terms of this Deed, the Covenantors have agreed with
the Company and Peel Xxxx to enter into certain restrictions with
regard to the disposal by them (or any of their Associates) of the
Locked-in Shares and Warrants.
1 DEFINITIONS AND INTERPRETATIONS
1.1 The following expressions used in this Deed shall have the following
meanings:
"ADMISSION" means the admission of the entire issued
and to be issued share capital and the
Warrants of the Company to trading on AIM
becoming effective in accordance with
Rule 6 of the AIM Rules;
"ADMISSION DOCUMENT" means the document in the agreed form to
be issued by the Company in connection
with Admission;
"AIM" means the Alternative Investment Market
operated by the London Stock Exchange;
"AIM RULES" means the rules published by the London
Stock Exchange governing admission to AIM,
and the regulation of AIM companies and
their nominated advisers, as amended or
reissued from time to time;
"ASSOCIATE" means, in relation to any Covenantor,
their associates as defined in the
definition of "related party" in Schedule
9 of the AIM Rules;
"BUSINESS DAY" means a day on which dealings take place
on the London Stock Exchange;
"COMMON SHARES" means the shares of common stock, par
value $0.0001 each, in the capital of the
Company (or such other nominal amount of
the Company's common stock
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following any consolidation, sub-division,
repayment or reduction of capital or other
event giving rise to an adjustment of the
nominal amount of such common shares
hereafter), including any such shares
allotted (whether or not subject to any
condition) but not yet issued;
"DISPOSAL" includes any sale, transfer, mortgage,
assignment, grant of options over,
charge, pledge, or other disposal or an
agreement to sell, transfer, mortgage,
assign, grant options over, charge,
pledge or otherwise dispose, or any
transaction which has the same economic
effect as any of the foregoing
(including, without limitation, any swap
or contract for differences) and
"DISPOSE" shall be construed accordingly;
"LOCKED-IN SHARES AND WARRANTS" means:
(a) the Common Shares or Warrants held
or controlled, whether directly or
indirectly, by the Covenantors or
any of their Associates on or
immediately following the date of
Admission;
(b) any additional Common Shares or
Warrants allotted or issued to
and/or acquired by the Covenantors
or any of their Associates up to and
including the Relevant Date; and
(c) any additional Common Shares issued
to the Covenantors or any of their
Associates pursuant to the
conversion of any convertible debt
securities, Warrants, options or
similar rights held by it on the
date of Admission;
"LONDON STOCK EXCHANGE" means London Stock Exchange plc;
"PLACING" means the proposed placing of Units
pursuant to the Placing Agreement;
"PLACING AGREEMENT" means the agreement of even date herewith
between the Company, the directors of the
Company, Peel Xxxx and CRT Capital Group
LLC, relating to the Placing;
"RELEVANT DATE" means the date falling 12 calendar months
after the date of Admission;
"UNIT" means a unit of one Common Share and one
Warrant; and
"WARRANTS" means the warrants issued by the Company
giving each holder the right to one
Common Share.
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1.2 References to clauses and schedules are, unless otherwise stated,
to clauses of and schedules to this Deed.
1.3 References to statutory provisions shall be construed as references
to those provisions as respectively replaced, amended or re-enacted
(whether before or after the date hereof) and shall include any
provisions of which they are re-enactments (whether with or with
out modification) and any subordinate legislation made under such
provisions.
1.4 Words importing the singular include the plural and vice versa,
words importing any gender include every gender and references to
persons include bodies corporate or unincorporated, unincorporated
associations and partnerships.
1.5 The headings to the clauses are for convenience only and have no
legal effect.
1.6 The obligations of the Covenantors under this Deed are several.
2 CONDITION
2.1 The obligations of the parties to this Deed are conditional upon
Admission.
2.2 If the condition set out in Clause 2.1 is not fulfilled by July 31,
2006, this Deed shall cease and determine and no party to this Deed
shall have any claim against any other party to this Deed for
costs, damages, compensation or otherwise.
3 LOCK-IN PROVISIONS AND ORDERLY MARKET
3.1 Each Covenantor undertakes to the Company and Peel Xxxx that it
will not, and will procure that its Associates will not, prior to
the Relevant Date, Dispose of, or agree to Dispose of, directly or
indirectly, any of the Locked-in Shares and Warrants or any
interest in or right to them, except with the prior written consent
of the Company and Peel Xxxx (which consent will only be given
where a derogation from Rule 7 of the AIM Rules has been granted by
the London Stock Exchange) and subject to the orderly market
provisions set out in clause 3.2 below, save for any of the
following:
3.1.1 any Disposal resulting from an acceptance of an offer for
the entire issued share capital of the Company or the
giving of an irrevocable undertaking to accept an offer
for the entire issued share capital of the Company (in
either case excluding Common Shares already held by the
offeror) which has either been recommended for acceptance
by the directors of the Company or has become
unconditional as to acceptances, provided that nothing in
this clause shall exclude a Covenantor from giving an
irrevocable undertaking to accept an offer for the entire
issued share capital of the Company which is conditional
upon such offer becoming or being declared unconditional
in all respects and being recommended for acceptance by
the directors of the Company;
3.1.2 any Disposal for which a derogation from Rule 7 of the AIM
Rules has been granted by the London Stock Exchange
pursuant to or in connection with an offer by the Company
for the purchase or redemption of its own share capital in
accordance with applicable law and the AIM Rules;
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3.1.3 any Disposal of Common Shares pursuant to an intervening
court order; or
3.1.4 any Disposal on the death of a Covenantor.
3.2 For a period of 12 calendar months after the Relevant Date or in
circumstances where Peel Xxxx has given consent to a sale pursuant
to clause 3.1, if a Covenantor wishes to Dispose of any of the
Locked-in Shares and Warrants, then in order to maintain an orderly
market, any such Disposal shall be effected through Peel Xxxx in
its capacity as the Company's nominated broker under the AIM Rules,
provided that:
3.2.1 Peel Xxxx is, at the time of such proposed Disposal,
authorised by the Financial Services Authority to effect
such Disposal;
3.2.2 in the execution of such Disposal, Peel Xxxx offers
competitive pricing and trading terms for the quantity of
Locked-in Shares and Warrants being Disposed based on
market terms quoted by any other reputable stockbroker or
dealer in securities in the United Kingdom in respect of
such Disposal; and
3.2.3 if Peel Xxxx are no longer the Company's broker, then the
benefits and obligations of this clause 3.2 shall pass to
any successor nominated broker to the Company which has
replaced Peel Xxxx.
3.3 Any sale pursuant to clause 3.2 above shall be effected by Peel
Xxxx within three (3) Business Days of the receipt by Peel Xxxx of
notification from the Covenantor of its intention to sell any of
the Locked-in Shares and Warrants. In the event that such sale is
not effected within three (3) Business Days in accordance with this
clause, the Covenantor shall be entitled to sell the Locked-in
Shares and Warrants through any other stockbroker or dealer in
securities.
4 UNDERTAKINGS
4.1 Each Covenantor agrees that:
4.1.1 if any of the Locked-In Shares and Warrants beneficially
owned by such Covenantor are registered in the name of any
other person, it shall procure that such person complies
with the obligations set out in this Deed as though it
were a party to this Deed;
4.1.2 if it holds Locked-In Shares and Warrants as nominee for
any other person, it shall use its reasonable endeavours
to procure that such person complies with the obligations
set out in this Deed as though it were a party to this
Deed; and
4.1.3 the restriction on Disposals and the other provisions in
this Deed will be binding on each such person and its
successors and assigns.
4.2 Each Covenantor consents to the inclusion in the Admission Document
of references to this Deed and a summary of its contents.
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5 WARRANTIES
5.1 Each Covenantor warrants that it has full power and authority to
undertake its obligations set out in this Deed.
5.2 Each Covenantor warrants that upon Admission, it will be the
registered holder of the number of Common Shares and Warrants set
out next to its name in Schedule 1.
6 GENERAL
6.1 This Deed shall be governed by and construed in accordance with
English law. The parties hereby submit for all purposes connected
herewith to the non-exclusive jurisdiction of the High Court of
Justice in England in relation to any matter arising out of this
Deed. All parties expressly waive any objections to such
jurisdiction on the ground of venue.
6.2 This Deed is personal to the parties hereto and may not be assigned
by any party without the prior written consent of the other parties
hereto. This Deed is binding on and enures for the benefit of the
successors and permitted assigns of the parties.
6.3 If any provision in this Deed shall be held to be illegal, invalid
or unenforceable, in whole or in part:
6.3.1 either under any enactment or rule of law, such provision
or part shall to that extent be deemed not to form part of
this Deed; or
6.3.2 under the law of any other jurisdiction, the legality,
validity and enforceability of the remainder of this Deed
shall not be affected.
6.4 At any time after the date of this Deed, each Covenantor shall, at
the Company's expense, do such acts and things as the Company or
Peel Xxxx may reasonably require for the purpose of giving the
Company or Peel Xxxx the full benefit of all the provisions of this
Deed in relation to the obligations of the Covenantors.
6.5 The Company agrees to take such action as Peel Xxxx shall
reasonably require to enforce the provisions of this Deed for the
benefit of the Company.
6.6 No variation of this Deed shall be effective unless in writing and
signed by or on behalf of each of the parties.
6.7 The parties to this Deed do not intend that any term of this Deed
should be enforceable, by virtue of the Contracts (Rights of Third
Parties) Xxx 0000 or otherwise, by any person who is not a party to
this Deed.
6.8 This Deed may be entered into in any number of counterparts and by
the parties to it on separate counterparts, each of which when
executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument.
6.9 Save as specifically otherwise provided in this Deed, any notice to
be given under this Deed shall be in writing and shall be delivered
to or sent by registered or recorded post to the parties'
respective addresses or registered offices as set out in Schedule 1
or as otherwise notified by them from time to time (in accordance
with the provisions of this clause). Any such notice shall be
deemed to be served when left at the address of the party to be
served and, if sent by post to an address within the same country as
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the sender, on the Business Day next following the day of posting
or, if sent by post to a country different to the country of
posting, on the fifth Business Day following the date of posting.
In proving the giving of notice it shall be sufficient to prove
that the notice was left or that the envelope containing such
notice was properly addressed and posted.
6.10 Each of the Covenantors and the Company appoints, without power of
revocation, [Jordans Limited] of [20-22 Xxxxxxx Xxx, Xxxxxx XX0X
0XX, Xxxxxxx] as its agent for service of process in England and
Wales and hereby irrevocably consents to the service of process in
any proceedings by delivery to such agent.
6.11 Each of the Covenantors acknowledges that any decision by Peel Xxxx
to withhold consent in accordance with the provisions of this Deed
shall not form the basis of any claim against the Company or Peel
Xxxx for any damage, loss, cost or expense alleged to have been
caused by such decision, unless Peel Xxxx has not complied with its
obligations, if any, to act reasonably in circumstances where its
consent is required under this Deed.
6.12 Each of the Covenantors acknowledges that the remedies at law for
breach or threat of breach of the provisions of Clauses 3 and/or 4
by any Covenantors may be inadequate, and that the Company and/or
Peel Xxxx shall be entitled to an injunction or injunctions to
prevent breaches of such provisions and to enforce specifically
such provisions; such injunction or injunctions to be in addition
to any other remedy to which the Company and/or Peel Xxxx may be
entitled at law or in equity.
IN WITNESS whereof this Deed has been executed and delivered as a
deed on the date first above written.
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SCHEDULE 1
THE COVENANTORS
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NAME AND CONTACT DETAILS OF NUMBER OF COMMON SHARES NUMBER OF WARRANTS
COVENANTOR HELD AT ADMISSION HELD AT ADMISSION
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St. Albans Global Management Limited 2,500,000
Partnership LLLP
0000 Xxxxxxx Xxxxxxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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Xxx X. Xxxxxx Revocable Trust dated 3.26.96 2,500,000
0000 Xxxxxxx Xxxx Xxxx #000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Xxx X. Xxxxxx Gift Trust dated 10.6.99 125,000
0000 Xxxxxxx Xxxx Xxxx #000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Xxxxx Xxxx 312,500
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Xxxxxxx X. Xxxxxxx Revocable Trust 312,500
0000 Xxxxxxx Xxxxxxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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Xxxx Xxxxxxx Xxxxxxx 0
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxx
Xxxxxxxx 00000
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Xxx X. Xxxxxx 0
0000 X. Xxxxxx Xxxx
Xxxxx Xxxxxxx
Xxxxxxxxxx 00000
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Xxxxxxx X. Xxxxxxx 0
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxx
Xxxxxxxx 00000
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Xxxxxx X. Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxx 000, Xxx Xxxx
Xxx Xxxx 00000
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Xxxxxxx X. Xxxx 0
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
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EXECUTED AS A DEED BY THE PARTIES:
EXECUTED and DELIVERED )
as a Deed by SAGM HOLDINGS, LLC )
duly authorised to execute this document )
as a DEED as general partner on behalf of )
ST. ALBANS GLOBAL MANAGEMENT )
LIMITED PARTNERSHIP LLLP )
in accordance with the laws of [o] Delaware ) /s/ Xxxxxxx X. Xxxxxxx
-------------------------
XXXXXXX X XXXXXXX
Manager
/s/ Xxxx X. Xxxxxx
----------------------------
Signature of Witness
Xxxx X. Xxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
----------------------------
Address of Witness
EXECUTED and DELIVERED )
as a Deed by XXX X XXXXXX )
duly authorised to execute this document )
as a DEED as trustee on behalf of )
THE XXX XXXXXX REVOCABLE TRUST )
DATED MARCH 26, 1996 )
in accordance with the laws of [o] ) /s/ Xxx X. Xxxxxx
-------------------------
/s/ Xxxxx Xxxxxxxx
----------------------------
Signature of Witness
Xxxxx Xxxxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx Xx
Xxxxxxxxxxx, XX 00000
----------------------------
Address of Witness
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EXECUTED and DELIVERED )
as a Deed by XXX X XXXXXX )
duly authorised to execute this document )
as a DEED as trustee on behalf of )
THE XXX XXXXXX GIFT TRUST DATED )
OCTOBER 6, 1999 )
in accordance with the laws of [o] ) /s/ Xxx X. Xxxxxx
-------------------------
/s/ Xxxxx Xxxxxxxx
----------------------------
Signature of Witness
Xxxxx Xxxxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx Xx
Xxxxxxxxxxx XX
----------------------------
Address of Witness
EXECUTED and DELIVERED )
as a Deed by XXXXXXX X XXXXXXX )
duly authorised to execute this document )
as a DEED as trustee on behalf of )
THE XXXXXXX X. XXXXXXX )
REVOCABLE TRUST )
in accordance with the laws of [o] Missouri ) /s/ Xxxxxxx X. Xxxxxxx
-------------------------
/s/ Xxxx X. Xxxxxx
----------------------------
Signature of Witness
Xxxx X. Xxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
----------------------------
Address of Witness
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Executed as a Deed by )
XXXX XXXXXXX XXXXXXX )
in his individual capacity )
in the presence of: ) /s/ Xxxx Xxxxxxx Xxxxxxx
) -------------------------
/s/ Xxxx X. Xxxxxx
----------------------------
Signature of Witness
Xxxx X. Xxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
----------------------------
Address of Witness
Executed as a Deed by )
XXXXX XXXX )
in his individual capacity )
in the presence of: ) /s/ Xxxxx Xxxx
) -------------------------
/s/ Xxxxxx Xxx Xxxxxxx
----------------------------
Signature of Witness
Xxxxxx Xxx Xxxxxxx
----------------------------
Name of Witness
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
----------------------------
Address of Witness
11
Executed as a Deed by )
XXXXXXX X. XXXXXXX )
in his individual capacity )
in the presence of: ) /s/ Xxxxxxx X. Xxxxxxx
) -------------------------
/s/ Xxxx X. Xxxxxx
----------------------------
Signature of Witness
Xxxx X. Xxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx.
Xx. Xxxxx, XX 00000
----------------------------
Address of Witness
Executed as a Deed by )
XXX X. XXXXXX )
in his individual capacity )
in the presence of: ) /s/ Xxx X. Xxxxxx
) -------------------------
/s/ Xxxxx Xxxxxxxx
----------------------------
Signature of Witness
Xxxxx Xxxxxxxx
----------------------------
Name of Witness
0000 Xxxxxxx Xxxx Xx
Xxxxxxxxxxx, XX
----------------------------
Address of Witness
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Executed as a Deed by )
XXXXXX X. XXXXX )
in his individual capacity )
in the presence of: ) /s/ Xxxxxx X. Xxxxx
) -------------------------
/s/ X. Xxxxxxxx
----------------------------
Signature of Witness
Xxxxxxxx Xxxxxxxx
----------------------------
Name of Witness
000 Xxxx 00xx, 0X
Xxx Xxxx, XX 00000
----------------------------
Address of Witness
Executed as a Deed by )
XXXXXXX X. XXXX )
in his individual capacity )
in the presence of: ) /s/ Xxxxxxx X. Xxxx
) -------------------------
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Signature of Witness
Xxxxxxx X. Xxxxxxxx
----------------------------
Name of Witness
X.X. Xxx 00
Xxxxxxx, XX 00000
----------------------------
Address of Witness
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Executed as a Deed by Xxxxxxx X. Xxxxxxx ) /s/ Xxxxxxx X. Xxxxxxx
[o], duly authorised to execute ) -----------------------------
this document as a Deed on behalf of ) Director
Viceroy Acquisition Corporation )
in accordance with the laws of the ) Witness: /s/ Xxxx X. Xxxxxx
State of Delaware ) -------------------
Name and Address
of Witness:
Xxxx X. Xxxxxx
-------------------
0000 Xxxxxxx Xxxx.
-------------------
Xx. Xxxxx, XX 00000
-------------------
Executed as a Deed by ) /s/
KBC Peel Xxxx Ltd. ) -----------------------------
acting by: ) Director
/s/
-----------------------------
Director/Secretary
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