STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of ______ ___, 2005 ("Agreement"), by
and among VECTOR INTERSECT SECURITY ACQUISITION CORP., a Delaware corporation
("Company"), Xxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxxxxx Irrevocable Trust Number 7
for His Children and Their Descendants, Xxxxx Xxxxxxxx, Xxxxxxx X. Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxxx and Xxx Xxxxx (collectively "Initial
Stockholders") and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation ("Escrow Agent").
WHEREAS, the Company intends to enter into an Underwriting Agreement,
dated ______ ___, 2005 ("Underwriting Agreement"), with Xxxxxx & Xxxxxxx, LLC
(the "Representative") acting as representative of the underwriters
(collectively, the "Underwriters"), pursuant to which, among other matters, the
Underwriters will agree to purchase 18,750,000 units ("Units") of the Company.
Each Unit will consist of one share of the Company's Common Stock, par value
$.001 per share, and one Warrant, each Warrant to purchase one share of Common
Stock, all as more fully described in the Company's final Prospectus, dated
______ ___, 2005 ("Prospectus") comprising part of the Company's Registration
Statement on Form S-1 (File No. 333-_________) under the Securities Act of 1933,
as amended ("Registration Statement"), declared effective on _______ ___, 2005
("Effective Date").
WHEREAS, the Initial Stockholders have agreed as a condition of the
sale of the Units to deposit their shares of Common Stock 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 Stockholders 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
Stockholders 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 Stockholders 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 Stockholder
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. The Escrow Agent shall hold the
Escrow Shares until the third anniversary of the Effective Date ("Escrow
Period"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder's Escrow Shares to such
Initial Stockholder; 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 and; provided further, that if, after the Company
consummates a Business Combination (as such term is defined in the Registration
Statement), it (or the surviving entity) subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in all of the
stockholders of such entity having the right to exchange their shares of Common
Stock for cash, securities or other property, then the Escrow Agent will, upon
receipt of a certificate, executed by the Chief Executive Officer or Chief
Financial Officer of the Company, in form reasonably acceptable to the Escrow
Agent, that such transaction is then being consummated, release the Escrow
Shares to the Initial Stockholders upon consummation of the transaction so that
they can similarly participate. The Escrow Agent shall have no further duties
hereunder after the disbursement or destruction of the Escrow Shares in
accordance with this Section 3.
4. Rights of Initial Stockholders in Escrow Shares.
4.1. Voting Rights as a Stockholder. Subject to the terms of
the Insider Letter described in Section 4.4 hereof and except as herein
provided, the Initial Stockholders shall retain all of their rights as
stockholders 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
Stockholders, 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.
4.3. Restrictions on Transfer. During the Escrow Period, no
sale, transfer or other disposition may be made of any or all of the
Escrow Shares except (i) by gift to a member of Initial Stockholder's
immediate family or to a trust, the beneficiary of which is an Initial
Stockholder or a member of an Initial Stockholder's immediate family,
(ii) by virtue of the laws of descent and distribution upon death of
any Initial Stockholder, (iii) pursuant to a qualified domestic
relations order, or (iv) pursuant to a transfer of record ownership
whereby there is no change in beneficial ownership; 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 Insider Letter signed by the
Initial Stockholder transferring the Escrow Shares. During the Escrow
Period, the Initial Stockholders shall not pledge or grant a security
interest in the Escrow Shares or grant a security interest in their
rights under this Agreement.
4.4. Insider Letters. Each of the Initial Stockholders has
executed a letter agreement with the Representatives 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 Stockholder in certain
events, including but not limited to the liquidation of the Company.
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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.
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 Stockholders 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.
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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.
6.2. Third Party Beneficiaries. Each of the Initial
Stockholders 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 Representatives.
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.
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:
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If to the Company, to:
Vector Intersect Security Acquisition Corp.
Xxx Xxxxxxxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Chief Executive Officer
If to a Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
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 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.
6.8. Amendment. This Agreement contains the entire agreement
and understanding of the parties hereto with respect to the subject
matter hereof. This Agreement or any provision hereof may only be
changed, amended or modified by a writing signed by each of the parties
hereto; provided, however, that no such change, amendment or
modification may be made without the prior written consent of the
Representative. As to any claim, cross-claim or counterclaim in any way
relating to this Agreement, each party waives the right to trial by
jury.
6.9. Assignment. This Agreement may not be assigned by the
Escrow Agent without the prior consent of the Company.
WITNESS the execution of this Agreement as of the date first above written.
VECTOR INTERSECT SECURITY
ACQUISITION CORP.
By:
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Xxxx Xxxxxxxxxx
Chief Executive Officer
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INITIAL STOCKHOLDERS:
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Xxxx X. Xxxxxxxxxx
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Xxxxx Xxxxxxxx
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Xxxxxxx X. Xxxxxx
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Xxx Xxxxx
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Xxxxxx Xxxxxxx
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Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxx Irrevocable Trust
Number 7 for His Children and Their
Descendants
By:
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Name:
Title:
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
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Name:
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Title:
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