Exhibit 4.1
STOCK ESCROW AGREEMENT dated as of July 12, 2006 (the "AGREEMENT"), by and
among:
(1) VICEROY ACQUISITION CORPORATION, a company organised under the laws of
the state of Delaware, USA (the "COMPANY");
(2) ST ALBANS GLOBAL MANAGEMENT, LIMITED PARTNERSHIP, LLLP, XXX X. XXXXXX AS
TRUSTEE OF THE XXX X. XXXXXX REVOCABLE TRUST DATED MARCH 26, 1996 AND THE
XXX X. XXXXXX GIFT TRUST DATED OCTOBER 6, 1999, XXXXXXX X. XXXXXXX AS
TRUSTEE OF THE XXXXXXX X. XXXXXXX REVOCABLE TRUST, XXXXX X. XXXX IN HIS
INDIVIDUAL CAPACITY, XXX X. XXXXX IN HIS INDIVIDUAL CAPACITY, RAS LLC, XXXX
X. XXXXXX IN HIS INDIVIDUAL CAPACITY, XXXXX X. XXXX IN HIS INDIVIDUAL
CAPACITY, XXXXXXX X. CALL IN HIS INDIVIDUAL CAPACITY AND XXX XXXXXX IN HIS
INDIVIDUAL CAPACITY (each a "FOUNDING SHAREHOLDER" and together the
"FOUNDING SHAREHOLDERS"); and
(3) CAPITA TRUST COMPANY (JERSEY) LIMITED, a company incorporated in and
registered under the laws of Jersey (the "ESCROW AGENT");
WHEREAS, the Founding Shareholders subscribed for, and the Company
issued to such Founding Shareholders, in aggregate, 5,625,000 shares of
common stock, par value $0.0001 per share, in the capital of the Company
(the "SHARES"), such Shares being the "FOUNDING SHARES";
WHEREAS, the Founding Shareholders have agreed to deposit such
Founding Shares as are set forth opposite their respective names in Exhibit
A attached hereto (collectively the "ESCROW SHARES"), in escrow as
hereinafter provided;
WHEREAS, the Company and the Founding Shareholders desire that the
Escrow Agent hold 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 Founding
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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
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of the Founding Shareholders shall deliver to the Escrow Agent certificates
representing his or its respective Escrow Shares, to be held and disbursed
subject to the terms and conditions of this Agreement. For the purposes of
this Agreement, "EFFECTIVE DATE" means the date on which any of the common
stock or warrants of the Company are first admitted to trading on the
Alternative Investment Market ("AIM"), a market operated by the London Stock
Exchange plc. For the avoidance of doubt, all rights, title to and
indications of ownership of the Escrow Shares shall remain with the Founding
Shareholders.
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3. Disbursement of the Escrow Shares. The Escrow Agent shall hold
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the Escrow Shares until the third anniversary of the Effective Date (the
"ESCROW PERIOD"). On the expiry of the Escrow Period, the Escrow Agent
shall, upon written instructions from the Company, disburse each of the
Founding Shareholder's Escrow Shares to such Founding Shareholder; provided,
however, that if the Escrow Agent is notified in writing by the Company that
the Company:
(a) is being dissolved or liquidated at any time during the Escrow
Period, then the Escrow Shares shall be forfeited and the
Escrow Agent shall promptly return the certificates
representing the Escrow Shares to the Company or the Company's
registrar, upon the Company's order, for cancellation;
(b) having consummated a Qualified Business Combination (as such
term is used in the offering circular of the Company relating
to the offering of units by the Company (the "OFFERING
CIRCULAR")), intends to consummate a merger, amalgamation,
share exchange or other similar transaction which results in
(or would result in) all of the shareholders of such resulting
entity having the right to exchange their Shares for cash,
securities or other property, then the Escrow Agent will, upon
receipt of a certificate executed by the chairman of the
Company, in a form reasonably acceptable to the Escrow Agent,
stating that such transaction is then being consummated,
release the Escrow Shares to the Founding Shareholders upon
consummation of the transaction so that they can similarly
participate; or
(c) is repurchasing any of the Escrow Shares in accordance with its
bylaws or otherwise for cancellation, then the Escrow Agent
will, upon receipt of a certificate stating that such
repurchase is being undertaken, executed by the chairman of the
Company and in a form reasonably acceptable to the Escrow Agent
(the "REPURCHASE NOTICE"), release the Escrow Shares specified
in the Repurchase Notice to the Company for repurchase and
cancellation.
The Escrow Agent shall have no further duties hereunder in respect
of any Escrow Shares which have been disbursed or destroyed in accordance
with this Section 3 and shall have no further duties under this Agreement
once all Escrow Shares have been disbursed or destroyed in accordance with
this Section 3.
4. Rights of Founding Shareholders in Escrow Shares.
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4.1 Voting Rights as a Shareholder. Subject to the terms of the
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Insider Letters (as defined in Section 4.4 hereof) and except as herein
provided, the Founding Shareholders shall retain all of their rights as
holders of Shares in the Company during the Escrow Period, including,
without limitation, the right to vote in respect of such Shares.
4.2 Dividends and Other Distributions in Respect of the Escrow
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Shares. During the Escrow Period, all dividends or other distributions
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payable in cash with respect to the Escrow Shares shall be paid to the
Founding Shareholders, but all dividends payable in shares or other non-cash
property ("NON-CASH DIVIDENDS") shall be delivered to the Escrow Agent to
hold in
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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,
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transfer or other disposition may be made of any or all of the Escrow Shares
except (i) at a time at least one year following the Effective Date, by gift
to a member of a Founding Shareholder's immediate family or to a trust, the
beneficiary of which is a Founding Shareholder or a member of a Founding
Shareholder's immediate family, (ii) by virtue of the laws of descent and
distribution upon the death of any Founding Shareholder, (iii) pursuant to a
qualified domestic relations order; or (iv) to any company which is wholly
owned by that Founding Shareholder; provided, however, that such permissive
transfers may be implemented only if they are permitted pursuant to the
terms of the Lock-in Deed and the Insider Letter (both as defined in Section
4.4 hereof) and only upon the respective transferee's written agreement to
be bound by the terms and conditions of this Agreement and each of the
Lock-in Deed and the Insider Letter signed by the Founding Shareholder
transferring the Escrow Shares and, in the case of permissive transfer (iv),
to transfer the Escrow Shares back to the Founding Shareholder in the event
that the Founding Shareholder disposes of a majority of the shares of the
transferee company. During the Escrow Period, the Founding Shareholders
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 and Lock-in Deeds. Each of the Founding
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Shareholders has executed (i) a letter agreement with CRT Capital Group LLC,
("CRT"), KBC Peel Xxxx Ltd ("KBC") and the Company, dated as indicated on
Exhibit A hereto (the "INSIDER LETTER") and (ii) a Rule 7 lock-in deed with
KBC and the Company, dated as indicated on Exhibit A hereto (the "LOCK-IN
DEED") in connection with the rights and obligations of such Founding
Shareholder in certain events, including but not limited to the liquidation
of the Company.
5. Concerning the Escrow Agent.
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5.1 Good Faith Reliance. The Escrow Agent shall not be liable for
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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 reasonably believed by the Escrow Agent to be genuine after appropriate
due diligence 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
in 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
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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
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services of the Escrow Agent hereunder, or the Escrow Shares held by it
hereunder, other than expenses or losses arising from the gross negligence,
fraud, bad faith, willful default 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 shall retain the Escrow Shares
pending receipt of instructions from each of the Company and the Founding
Shareholders or receipt of an order of a court having jurisdiction over any
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 an initial
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fee of $1,500, and an ongoing fee of $5,000 per annum (subject to annual
review and payable quarterly in advance). The Escrow Agent shall also be
entitled to an activity fee of $95 any time any Escrow Shares are released,
delivered or transferred by it, and 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
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hereof, the Company and the Founding 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
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discharged from its duties as escrow agent hereunder by its giving the other
parties hereto 3 months' written notice and such resignation shall become
effective as hereinafter provided. Such resignation shall become effective
at such time following the expiry of the notice period that the Escrow Agent
shall turn over to a successor escrow agent appointed by the Company on
terms substantially as set out in this agreement, the Escrow Shares held
hereunder in such manner so as to ensure that the Escrow Shares remain in
escrow without being returned to the Founding Shareholders.
5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be
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discharged from its duties as escrow agent hereunder if so requested in
writing at any time by the Company and a majority of the Founding
Shareholders (provided that such request has been approved by each of CRT
and KBC, such consent not to be unreasonably withheld, delayed or
conditioned), 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
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Escrow Agent shall not be relieved from liability hereunder for its own
gross negligence or its own willful misconduct.
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6. Miscellaneous.
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6.1 Governing Law. This Agreement shall for all purposes be deemed
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to be made under and shall be construed in accordance with the laws of
England and Wales and the parties hereto agree to submit all disputes
hereunder to the non-exclusive jurisdiction of the courts of England and
Wales. Any action, proceeding or claim to be served upon the Company may be
served by transmitting a copy thereof by registered or certified mail,
return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 6.6 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any action,
proceeding or claim.
6.2 Third Party Beneficiaries. Each of the Company and the Founding
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Shareholders hereby acknowledge that each of CRT and KBC are third party
beneficiaries of this Agreement, and that this Agreement may not be modified
or changed without the prior written consent of both CRT and KBC. Except as
explicitly provided herein, the parties do not intend that any person who is
not a signatory to this Agreement (a "THIRD PARTY") shall acquire any right
under this Agreement (whether or not pursuant to the Contracts (Rights of
Third Parties) Act 1999) nor that the consent of or any notice to any Third
Party shall be required for the variation, rescission or termination of this
Agreement.
6.3 Entire Agreement. This Agreement contains the entire agreement
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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 be charged.
6.4 Headings. The headings contained in this Agreement are for
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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
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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
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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:
VICEROY ACQUISITION CORPORATION
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Chairman
If to a Founding Shareholder, to his address set forth in
Exhibit A.
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and if to the Escrow Agent, to:
Capita Trust Company (Jersey) Limited
XX Xxx Xx 000
XXXXXX
XX0 0XX
Xxxx: Xxxx Xxxxxx
A copy of any notice sent hereunder shall be sent to (but shall
not constitute notice):
CRT Capital Group LLC
000 Xxxxxx Xxxxx
Xxxxxxxx
Xxxxxxxxxxx
00000
Attn: President
and:
KBC Peel Xxxx Ltd
000 Xxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attn: Xxxx Xxxx
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
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notification of the liquidation and dissolution of the Company in the event
that the Company fails to consummate a Business Combination by the Qualified
Business Combination Deadline (such terms as defined in the Offering
Circular).
6.8 Trust Fund. Notwithstanding any other provision of this Agreement, the
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Escrow Agent confirms its understanding that the Company has established a
trust fund (the "TRUST FUND") relating to the Shares and Warrants, all as
described in the Offering Circular. The Escrow Agent acknowledges that the
Trust Fund will exist for the benefit of the Company's New Shareholders (as
defined in the Offering Circular) and that monies from the Trust Fund may
only be disbursed (i) to the New Shareholders (as defined in the Offering
Circular) in the event of liquidation of the Company or (ii) in the event of
certain other events as more fully described in the Offering Circular. The
Escrow Agent agrees that neither it nor any of its affiliates have or will
have any
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right, title interest or claim in or to monies in the Trust Fund (a "CLAIM")
and the Escrow Agent and its affiliates hereby waive any Claim against the
Trust Fund that it or they may have now or in the future as a result of or
arising out of this Agreement and will not seek recourse against the Trust
Fund for any reason whatsoever, including in respect of the Company's
indemnification obligations set out in this Agreement.
6.9 Appointment of Process Agent: The Company and each of the Founding
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Shareholders (each an "APPOINTER" for the purposes of this Section 6.9)
irrevocably appoints Jordans Limited of 00-00 Xxxxxxx Xxx, Xxxxxx XX0X 0XX
(the "AGENT") as its agent to accept service of process in England in any
legal action or proceedings arising out of or in connection with this
Agreement provided that each Appointer agrees:
(a) that service upon the Agent shall be deemed valid service upon the
Appointer whether or not the process is forwarded to or received by the
Appointer;
(b) to inform all other parties to this Agreement, in writing, of any
change of such Appointer's Agent or the address of its Agent within 28 days
of such change;
(c) that if the Agent ceases to be able to act as process agent or to
have an address in England, the Appointer irrevocably agrees to appoint a
new process agent in England and to deliver to the other parties to this
Agreement within 14 days a copy of a written acceptance of appointment by
the new process agent and if the Appointer fails to so appoint a new process
agent in accordance with this Section the other parties to this Agreement
shall be entitled to appoint such person by giving written notice of the
appointment to the relevant Appointer; and
(d) nothing in this Agreement shall effect the right to serve process in
any manner permitted by law.
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WITNESS the execution of this Agreement as of the date first above written.
VICEROY ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
[Director]
FOUNDING SHAREHOLDERS:
ST ALBANS GLOBAL MANAGEMENT, LIMITED
PARTNERSHIP, LLLP BY SAGM HOLDINGS,
LLC, GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
XXXXXXX X XXXXXXX
MANAGER
/s/ Xxx X. Xxxxxx
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XXX X XXXXXX AS TRUSTEE OF THE
XXX XXXXXX REVOCABLE TRUST DATED
MARCH 26, 1996
/s/ Xxx X. Xxxxxx
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XXX X XXXXXX AS TRUSTEE OF THE
XXX XXXXXX GIFT TRUST DATED
OCTOBER 6, 1999
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--------------------------------------
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X XXXXXXX AS TRUSTEE OF THE
XXXXXXX X. XXXXXXX REVOCABLE TRUST
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/s/ Xxxxx X. Xxxx
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XXXXX X XXXX, IN HIS INDIVDUAL
CAPACITY
/s/ Xxx X. Xxxxxx
--------------------------------------
RAS LLC
By:
/s/ Xxx X. Xxxxx
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XXX X. XXXXX, IN HIS INDIVIDUAL
CAPACITY
/s/ X. X. Xxxxxx
--------------------------------------
XXXX X. XXXXXX, IN HIS INDIVIDUAL
CAPACITY
/s/ Xxxxx X. Xxxx
--------------------------------------
XXXXX X. XXXX, IN HIS INDIVIDUAL
CAPACITY
/s/ Xxxxxxx X. Call
--------------------------------------
XXXXXXX X. CALL, IN HIS INDIVIDUAL
CAPACITY
/s/ Xxx Xxxxxx
--------------------------------------
XXX XXXXXX, IN HIS INDIVIDUAL CAPACITY
CAPITA TRUST COMPANY (JERSEY) LIMITED
By: /s/ Xxxxxxx X'Xxxxxx
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Name: Xxxxxxx X'Xxxxxx
Title: Director
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EXHIBIT A
SHARE
NAME AND ADDRESS OF NUMBER CERTIFICATE DATE OF DATE OF
FOUNDING SHAREHOLDER OF SHARES NUMBER INSIDER LETTER LOCK-IN DEED
------------------------------------------------- ----------- ------------- -------------- --------------
St. Albans Global Management, Limited
Partnership, LLLP of 0000 Xxxxxxx Xxxxxxxxx,
0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 2,250,000 C-1 July __,2006 July __,2006
Xxx X. Xxxxxx Revocable Trust dated 3.26.96 of
0000 Xxxxxxx Xxxx Xxxx #000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 2,000,000 C-2 July __,2006 July __,2006
Xxx X. Xxxxxx Gift Trust dated 10.6.99 of 0000
Xxxxxxx Xxxx Xxxx #000, Xxx Xxxxxxx, Xxxxxxxxxx
00000 100,000 C-3 July __,2006 July __,2006
Xxxxx X. Xxxx of 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx 00000 250,000 C-4 July __,2006 July __,2006
Xxxxxxx X. Xxxxxxx Revocable Trust of 0000
Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000 250,000 C-5 July __,2006 July __,2006
Xxx X. Xxxxx of 1999 Avenue of the Stars, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 250,000 C-6 July __,2006
Xxxx X. Xxxxxx of 0000 Xxxxxxx Xxxx Xxxx #000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 100,000 C-7 July __,2006
RAS, LLC of 0000 Xxxxxxx Xxxx Xxxx #000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 50,000 C-8 July __,2006
Xxxxx X. Xxxx of 0000 Xxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 150,000 July __,2006
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Xxxxxxx X. Call of 0000 Xxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 150,000 July __,2006
Xxx Xxxxxx of 0000 Xxxxxxx Xxxxxxxxx, 0xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 75,000 July __,2006
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