PUT/CALL ESCROW AGREEMENT
THIS
PUT/CALL ESCROW AGREEMENT (“Agreement”) is dated August
17, 2009 by and among North Shore Acquisition Corp., a Delaware corporation (the
“Company”), Xxxxx X.
Xxxxxx (“Xxxxxx”), Xxxx
X. Xxxx (“Xxxx”), Xxxxxx
Xxxxx (“Xxxxx”), Xxxxxx
X. Xxxxxxxx (“Xxxxxxxx”), Xxxxxx Xxxxxx
(“Xxxxxx”), Xxxx X.
Xxxxxxxxxxx (“Xxxxxxxxxxx”), Sang-Xxxx Xxx
(the “Investor”) and
Xxxxxxxx Xxxxxx, as escrow agent (the “Escrow Agent”). Gordon, Klee,
Sroka, Goldberg, Xxxxxx and Loewenstein are each herein referred to individually
as a “Seller” and
collectively as the “Sellers”.
The
Company, the Sellers and the Investor are parties to an Agreement dated as of
August 17, 2009 (the “Put/Call
Agreement”) pursuant to which the Sellers will have the option to sell to
the Investor and the Investor will have the option to purchase from the Sellers
1,600,000 warrants to purchase shares of common stock, par value $0.0001 per
share (the “Common
Stock”), of the Company (the “Warrants”) upon the earlier of
(i) the Company’s consummation of a Business Combination (as defined in the
Put/Call Agreement), (ii) the Company’s liquidation of its trust account and
(iii) December 31, 2009 (the “Escrow Period”), all upon the
terms and subject to the conditions set forth in the Put/Call Agreement.
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings ascribed to them in the Put/Call Agreement.
Pursuant
to the Put/Call Agreement, (i) the purchase price to be paid by the Investor to
the Sellers in exchange for the Warrants and (ii) the Warrants to be purchased
by the Investor, together with duly executed warrant powers, are to be held in
escrow subject to the terms of this Agreement.
The
parties agree as follows:
1.
(a)
Concurrently with the execution hereof, (i) the Sellers are delivering to
the Escrow Agent certificates representing the Warrants issued in the name of
each Seller, together with duly executed warrant powers to enable the transfer
of such Seller’s Warrants to the extent required pursuant to the terms hereof
and (ii) the Investor is delivering to the Escrow Agent the Purchase Price
(together, the “Escrow
Fund”), all of which shall be held in escrow pursuant to the terms of
this Agreement.
(b)
The Escrow Agent hereby agrees to act as
escrow agent and to hold, safeguard and disburse the Escrow Fund pursuant to the
terms and conditions hereof. It shall treat the Escrow Fund as a trust
fund in accordance with the terms of this Agreement and not as the property of
the Company. The Escrow Agent’s duties hereunder shall terminate upon its
distribution of the Warrants, warrant powers and Purchase Price in the Escrow
Fund in accordance with this Agreement.
(c)
During the Escrow Period, all interest earned on the Purchase Price held
in the Escrow Fund shall be delivered to the Escrow Agent to hold as part of the
Escrow Fund in accordance with the terms hereof.
(d)
During the Escrow Period, no sale, transfer or other disposition may be
made of any or all of the Warrants except (i) by bona fide gift to a member of a
Seller’s immediate family or to a trust, the beneficiary of which is a Seller or
a member of a Seller’s immediate family, (ii) by virtue of the laws of descent
and distribution upon death of any Seller or (iii) pursuant to a qualified
domestic relations order. In connection with and as a condition to each
permitted transfer, the transferee shall deliver to the Escrow Agent an
assignment form executed by the transferring Seller, or where applicable, an
order of a court of competent jurisdiction or death certificate, evidencing the transfer of
Warrants to the transferee, together with a warrant power and an agreement to be
bound by this Agreement executed by the transferee. Upon receipt of such
documents, the Escrow Agent shall deliver to the Company’s warrant agent the
original warrant certificate out of which the assigned Warrants are to be
transferred, together with the executed assignment forms executed by the
transferring Seller, or a copy of the applicable court order or death
certificate, and shall request that the Company’s warrant agent issue new
certificates representing (A) the number of Warrants, if any, that continue to
be owned by the transferring Seller, and (B) the number of Warrants owned by the
transferee as the result of such transfer. The Company, the transferring
Seller and the transferee shall cooperate in all respects with the Escrow Agent
in documenting each such transfer and in effectuating the result intended to be
accomplished thereby. After any Warrant is transferred pursuant to this
paragraph, such Warrant so transferred will continue to be held by the Escrow
Agent in accordance with the terms of this Agreement. During the Escrow
Period, no Owner (defined below) shall pledge or grant a security interest in
such Owner’s Warrants included in the Escrow Fund or grant a security interest
in such Owner’s rights thereto under this Agreement. The Sellers and all
transferees are herein referred to collectively as the “Owners.”
2.
(a)
Upon receipt by the Escrow Agent after the Option Trigger of either (i)
notice of exercise of a Call Option from the Investor or (ii) notice of exercise
of a Put Option from the Sellers without any notice from the Investor stating
that the Sellers have breached the representations and warranties contained in
Section 4.6 of the Put/Call Agreement (a “Breach Notice”), then within
two business days of such receipt, the Escrow Agent shall deliver (x) the
Purchase Price, plus the interest earned thereon, to the Sellers and (y) the
Warrants and warrant powers to the Investor.
(b)
Upon receipt by the Escrow Agent of a Breach
Notice, countersigned by the Sellers, the Escrow Agent shall deliver (i) the
Purchase Price, plus interest earned thereon, to the Investor and (ii) the
Warrants and warrant powers to the Sellers.
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(c)
Upon receipt by the Escrow Agent after the
Option Trigger of either (i) notice of exercise of a Put Option from the Sellers
and a subsequent Breach Notice or (ii) a Breach Notice not countersigned by the
Sellers, then a dispute shall be deemed to exist, which dispute shall be
governed by paragraph (d) below.
(d)
If there is a dispute between the Sellers and
the Investor in connection with paragraph (c) of this Section 2, the dispute
shall be submitted (and either party may submit such dispute) for arbitration
before a single arbitrator in New York, New York, in accordance with the
commercial arbitration rules of the American Arbitration Association then in
effect. The Sellers and the Investor shall attempt to agree upon an
arbitrator; if they shall be unable to agree upon an arbitrator within 10 days
after the dispute is submitted for arbitration, then either the Sellers or the
Investor, upon written notice to the other, may apply for appointment of such
single arbitrator by the American Arbitration Association in accordance with its
rules. Each party shall pay the fees and expenses of counsel used by it
and 50% of the fees and expenses of the arbitrator and of other expenses of the
arbitration. The arbitrator shall render his decision within 90 days after
his appointment and may award costs to either the Sellers or the Investor if, in
his sole opinion reasonably exercised, the claims made by any other party had no
reasonable basis and were arbitrary and capricious. Such decision and award
shall be in writing and shall be final and conclusive on the parties, and
counterpart copies thereof shall be delivered to each of the parties. Judgment
may be obtained on the decision of the arbitrator so rendered in any court
having jurisdiction and may be enforced in any such court. If the arbitrator
shall fail to render his decision or award within such 90-day period, either the
Sellers or the Investor may apply to any state court sitting in New York County,
New York, or any federal court sitting in such county then having jurisdiction,
by action, proceeding or otherwise, as may be proper to determine the matter in
dispute consistently with the provisions of this Agreement. Each of the
Sellers and the Investor consents to the exclusive jurisdiction of the state
courts sitting in New York County or any federal court having jurisdiction and
sitting in such county for this purpose. The prevailing party (or either party,
in the case of a decision or award rendered in part for each party) shall send a
copy of the arbitration decision or of any judgment of the court to the Escrow
Agent.
3.
The Escrow Agent, the Company, the Sellers and
the Investor shall cooperate in all respects with one another in implementing
the procedures necessary to effect the release of the Warrants and the Purchase
Price in accordance with this Agreement.
4.
(a)
The Escrow Agent undertakes to perform only such duties as are expressly
set forth herein. It is understood that the Escrow Agent is not a trustee
or fiduciary and is acting hereunder merely in a ministerial
capacity.
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(b)
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.
(c)
The Escrow Agent’s sole responsibility upon receipt of any notice pursuant
to the terms of this Agreement is to release the Warrants and the Purchase Price
that is the subject of such notice and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification or
certification made in such notice.
(d)
The Escrow Agent shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and indemnification under
Section 4(g), below, for any action taken or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(e)
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 the Escrow Fund to a successor escrow agent appointed jointly by the
Sellers and the Investor. 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 Fund with any court it reasonably deems
appropriate.
(f)
In the event of a dispute between the parties as to the proper disposition
of the Escrow Fund, the Escrow Agent shall be entitled (but not required) to
deliver the Escrow Fund to any court in the State of New York or the United
States District Court for the Southern District of New York and, upon giving
notice to the Company, the Sellers and the Investor of such action, shall
thereupon be relieved of all further responsibility and
liability.
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(g)
The Escrow Agent shall be indemnified and held harmless jointly and
severally by the Company, the Sellers and the Investor 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 that in any way, directly or indirectly, arises out of or relates to
this Agreement, the services of the Escrow Agent hereunder, or the Escrow Fund
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 Fund in question or it may deposit the Escrow Fund with the clerk of
any appropriate court and be relieved of any liability with respect thereto or
it may retain the Escrow Fund 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 Warrants and Purchase Price in the Escrow Fund
are to be disbursed and delivered.
(h)
The Escrow Agent shall be entitled to reimbursement from the Company for
all reasonable documented expenses paid or incurred by it in the administration
of its duties hereunder including, but not limited to, any taxes or other
governmental charges. Notwithstanding the foregoing, the Escrow Agent
shall not be entitled to any fees for its own services rendered under the Escrow
Agreement.
(i)
From time to time on and after the date hereof, the Company, the Sellers
and the Investor 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.
(j)
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.
This Agreement expressly sets forth all the
duties of the Escrow Agent with respect to any and all matters pertinent hereto.
No implied duties or obligations shall be read into this Agreement against the
Escrow Agent. The Escrow Agent shall not be bound by the provisions of any
agreement among the parties hereto except this Agreement and shall have no duty
to inquire into the terms and conditions of any agreement made or entered into
in connection with this Agreement, including, without limitation, the Put/Call
Agreement.
6.
This Agreement shall inure to the benefit of
and be binding upon the parties and their respective heirs, successors, assigns
and legal representatives, shall be governed by and construed in accordance with
the law of New York applicable to contracts made and to be performed
therein. This Agreement cannot be changed or terminated except by a
writing signed by the Company, the Sellers, the Investor and the Escrow
Agent.
7.
This Agreement shall not create any fiduciary
duty on the Escrow Agent’s part to any of the Company, the Sellers or the
Investor, nor disqualify the Escrow Agent from representing the Company or any
of its affiliates in any dispute with any Seller or the Investor, including any
dispute with respect to this Agreement.
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8.
The Company, each Seller
and the Investor hereby consent to the exclusive jurisdiction of the state
courts sitting in New York County and federal courts sitting in such county with
respect to any claim or controversy arising out of this
Agreement. Service of process in any action or proceeding
brought against any party in respect of any such claim or controversy may be
made upon it by registered mail, postage prepaid, return receipt requested, at
the address specified in Section 9.
9. All
notices and other communications under this Agreement shall be in writing and
shall be deemed given if given by hand or delivered by nationally recognized
overnight carrier, or if given by facsimile and confirmed by mail (registered or
certified mail, postage prepaid, return receipt requested), to the respective
parties as follows:
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To
the Sellers:
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American
Fund Advisors, Inc.
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000
Xxxxx Xxxx Xxxx, Xxxxx 000
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Xxxxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxx Xxxx
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Facsimile:
(000) 000-0000
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To
the Company:
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000
Xxxxx Xxxx Xxxx, Xxxxx 000
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Xxxxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxx Xxxx
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Facsimile:
(000) 000-0000
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In
either case, with a copy to:
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Xxxxxxxx
Xxxxxx
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The
Chrysler Building
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000
Xxxxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxx Xxxx Xxxxxx, Esq.
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Facsimile:
(000) 000-0000
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To
the Investor:
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Sang-Xxxx
Xxx
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(135-270)
7th Floor, SoftForum B/D
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000-0
Xxxxx-Xxxx
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Xxxxxxx-Xx,
Xxxxx 000-000 S. Korea
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Facsimile:
x00-0-000-0000
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With
a copy to:
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Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and
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Popeo,
P.C.
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6
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxx
X. Xxxx, Esq.
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Facsimile:
(000) 000-0000
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To
the Escrow Agent, to it at:
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Xxxxxxxx
Xxxxxx
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000
Xxxxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxxx Xxxx Xxxxxx, Esq.
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Facsimile:
(000) 000-0000
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or to
such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
(a) All
notices delivered to the Escrow Agent shall refer to the provision of this
Agreement under which such notice is being delivered.
(b) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument and all of which together shall constitute a
single agreement.
[Remainder of page intentionally left
blank. Signature page to follow.]
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IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement on
the date first above written.
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SELLERS:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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/s/
Xxxx X. Xxxx
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Xxxx
X. Xxxx
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
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/s/
Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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/s/
Xxxx X. Xxxxxxxxxxx
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Xxxx
X.
Xxxxxxxxxxx
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| INVESTOR: | ||||
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NORTH
SHORE ACQUISITION
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CORP.
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By:
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/s/
Xxxx X. Xxxx
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/s/
Sang-Xxxx Xxx
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Name:
Xxxx X. Xxxx
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Sang-Xxxx
Xxx
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Title:
President
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ESCROW
AGENT:
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XXXXXXXX
XXXXXX
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title: Partner
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[Signature
Page - Escrow Agreement]
