SHARE ESCROW AGREEMENT
SHARE
ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of
________, 2011 (“Agreement”), by and among GREEN POWER ENTERPRISES, INC., a
Cayman Islands corporation (“Company”), ROSEWOOD PARTNERS, XXXXX XXXXXXX,
XXXXXXXX XXXXXXX, XXXX XX XXXXXXX XXXXXXX XXXXX, XXXXXX XXXXXXX XX XXXXXXX and
XXXXXXXXXX XXXXXXX (collectively “Initial Shareholders”) and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation (“Escrow
Agent”).
WHEREAS, the Company has entered into
an Underwriting Agreement, dated ___________, 2011 (“Underwriting Agreement”),
with Xxxxxx & Xxxxxxx, LLC (“Xxxxxx”) acting as representative of the
several underwriters (collectively, the “Underwriters”), pursuant to which,
among other matters, the Underwriters have agreed to purchase 5,000,000 units
(“Units”) of the Company. Each Unit consists of one ordinary share of the
Company, par value $.0001 per share (“Ordinary Shares”), and one Warrant, each
Warrant to purchase one Ordinary Share, all as more fully described in the
Company’s final Prospectus, dated _________, 2011 (“Prospectus”) comprising part
of the Company’s Registration Statement on Form S 1 (File No. 333-146916) under
the Securities Act of 1933, as amended (“Registration Statement”), declared
effective on _______, 2011 (“Effective Date”).
WHEREAS, the Initial Shareholders have
agreed as a condition of the sale of the Units to deposit their Ordinary Shares
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
Shareholders 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 Shareholders 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
Shareholders 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 Shareholder 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.
3.1 The
Escrow Agent shall hold the Escrow Shares until one year after the consummation
of a business combination (the “Escrow Period”), on which date, upon written
instructions from each Initial Shareholder, the Escrow Agent shall disburse such
amount of each Initial Shareholder’s Escrow Shares (and any applicable share
power) to such Initial Shareholder; 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; provided
further, however, that if, within one year after the Company consummates a
Business Combination (as such term is defined in the Registration Statement),
the Company (or the surviving entity) subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in all of the
shareholders of such entity having the right to exchange their Ordinary Shares
for cash, securities or other property, then the Escrow Agent will, upon receipt
of a notice executed by the Chairman of the Board, President or other authorized
officer of the Company, in form reasonably acceptable to the Escrow Agent,
certifying that such transaction is then being consummated or such conditions
have been achieved, as applicable, release the Escrow Shares to the Initial
Shareholders. The Escrow Agent shall have no further duties hereunder
after the disbursement or destruction of the Escrow Shares in accordance with
this Section 3.
3.2 Notwithstanding
Section 3.1, if the Underwriters do not exercise their over-allotment option to
purchase an additional 750,000 Units of the Company within 45 days of the date
of the Prospectus (as described in the Underwriting Agreement), the Initial
Shareholders agree that the Escrow Agent shall return to the Company for
cancellation, at no cost, the number of Escrow Shares held by each Initial
Shareholder determined by multiplying (a) the product of (i) 187,500, multiplied
by (ii) a fraction, (x) the numerator of which is the number of Escrow Shares
held by each Initial Shareholder, and (y) the denominator of which is the total
number of Escrow Shares, by (b) a fraction, (i) the numerator of which is
750,000 minus the number of Ordinary Shares purchased by the Underwriters upon
the exercise of their over-allotment option, and (ii) the denominator of which
is 750,000.
4.
Rights of Initial
Shareholders in Escrow Shares.
4.1 Voting Rights as a
Shareholder. Subject to the terms of the Insider Letters described
in Section 4.4 hereof and except as herein provided, the Initial Shareholders
shall retain all of their rights as shareholders 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 Shareholders, 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.
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4.3 Restrictions on
Transfer. During the Escrow Period, the only permitted transfers of
the Escrow Shares will be (A) pledges to secure obligations incurred in
connection with purchases of the Company’s securities, (B) private sales of the
Escrow Shares made at or prior to the consummation of a Business Combination at
prices no greater than the price at which the shares were originally purchased
or (C) transfers (i) to the Company’s officers and directors, (ii) to an
entity’s members upon its liquidation, (iii) by bona fide gift to a member of an
Initial Shareholder’s immediate family or to a trust, the beneficiary of which
is an Initial Shareholder or a member of an Initial Shareholder’s immediate
family for estate planning purposes, (iv) by virtue of the laws of descent and
distribution upon death of any Initial Shareholder, (v) pursuant to a qualified
domestic relations order or (vi) to the Company for cancellation in connection
with the consummation of a Business Combination; provided, however, that except
for clauses (B) and (C)(vi), 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
Shareholder transferring the Escrow Shares.
4.4 Insider
Letters. Each of the Initial Shareholders has executed a letter
agreement with Xxxxxx 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 Shareholder 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 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.
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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 Shareholders 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, without giving effect to conflicts of law principles that would result
in the application of the substantive laws of another jurisdiction.
6.2 Third Party
Beneficiaries. Each of the Initial Shareholders 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 Xxxxxx.
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.
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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:
Xx Xxxx. Xxxxx Xxxx
0000-00 Xxxxx
Brasilinvest Plaza CEP
01452-002
Sao Paulo, Brazil
Attn: Xxxxxxxx Xxxxxxx,
President
If to a Shareholder, 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:
Xxxxxx & Xxxxxxx, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxxx
X. Xxxxxxxxx
and:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
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and:
DLA Piper
LLP (US)
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxx-Xxxxxx
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 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.
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WITNESS the execution of this Agreement
as of the date first above written.
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By:
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INITIAL
SHAREHOLDERS:
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ROSEWOOD
PARTNERS
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By:
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Name:
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Title:
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Xxxxx
Xxxxxxx
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Xxxxxxxx
Xxxxxxx
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Xxxx
xx Xxxxxxx Sampaio Xxxxx
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Xxxxxx
Xxxxxxx xx Xxxxxxx
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Xxxxxxxxxx
Xxxxxxx
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CONTINENTAL
STOCK TRANSFER
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&
TRUST
COMPANY
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By:
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Name:
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Title:
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7
EXHIBIT
A
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Name
and Address of
Initial Shareholder
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Number
of Shares
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Stock
Certificate Number
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Date
of
Insider Letter
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Rosewood
Partners
c/o
Xxxxx Xxxxxxx
Xx
Xxxx. Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Xxxxx XXX 00000-000
Xxx
Xxxxx, Xxxxxx
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1,320,868 |
1
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____________,
2011
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Xxxxx
Xxxxxxx
Xx
Xxxx. Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
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36,632 |
2
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____________,
2011
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Xxxxxxxx
Xxxxxxx
Xx
Xxxx. Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
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22,500 |
3
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____________,
2011
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Xxxx
xx Xxxxxxx Xxxxxxx Filho
Xx
Xxxx. Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
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25,000 |
4
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____________,
2011
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Xxxxxx
Xxxxxxx xx Xxxxxxx
Rua
01, Number 900, Apt. 601, Edificio Notre Dame
Seton
Oeste, Brazil
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22,500 |
5
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____________,
2011
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Washington
Xxxxxxx
Xxxxx
Power Enterprises, Inc.
Xx
Xxxx. Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
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10,000 |
6
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____________,
2011
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