SHARE ESCROW AGREEMENT
This SHARE ESCROW AGREEMENT, dated as
of ___________, 2011 (“Agreement”), by and among Lone Oak Acquisition
Corporation, a Cayman Islands exempted company (“Company”), Xxxxx Xxxxx, Xxxxx
Xxxxxxx, Can Aydinoglu, BBS Capital Fund, LP, Xxxxxx Holdings LLC and Rampant
Dragon, LLC (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
EarlyBirdCapital, Inc. (“Underwriter”) acting as underwriter, pursuant to which,
among other matters, the Underwriter has agreed to purchase up to 4,000,000
units (“Units”) of the Company, plus up to an additional 600,000 Units pursuant
to an over-allotment option granted to the Underwriter. Each Unit
consists of one ordinary share of the Company, par value $.001 per share
(“Ordinary Shares”), and one Warrant, all as more fully described in the
Company’s final Prospectus, dated ________, 2011 (“Prospectus”) comprising part
of the Company’s Registration Statement on Form F-1 (File No. 333-______) 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 the date that is one year after
the consummation of a Business Combination (as defined in the Company’s Amended
and Restated Memorandum and Articles of Association) (“Escrow Period”), on which
date it shall, upon written instructions from each Initial Shareholder, 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 Trust Account (as defined in the Investment Management Trust
Agreement dated as of the date hereof by and between the Company and the
Escrow Agent, as trustee thereunder) is being liquidated at any time
during the Escrow Period, then the Escrow Agent shall promptly destroy the
certificates representing the Escrow
Shares;
|
|
|
·
|
if
the Underwriter does not exercise its over-allotment option to purchase an
additional 600,000 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) 150,000,
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 600,000 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 600,000;
and
|
|
|
·
|
if,
after the Company consummates a Business Combination, the Company (or the
surviving entity) subsequently consummates a liquidation, merger, share
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, 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 full in accordance with this Section
3.
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.
2
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 shares
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, the only permitted
transfers of the Escrow Shares will be (A) pledges to secure the 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 Escrow Shares were
originally purchased or (C) for transfers to (i) the Company’s officer’s and
directors, (ii) 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, (v) pursuant to a qualified
domestic relations order, or (vi) to the Company for cancellation in connection
with the consummation of a Business Combination, in each case, other than clause
(B) and (C)(vi), where the transferee agrees to the terms of this
Agreement.
4.4 Insider
Letters. Each of the Initial Shareholders has executed a
letter agreement with the Underwriter 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 Trust Account.
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.
3
5.2 Indemnification. The
Escrow Agent shall be indemnified and held harmless by the Company, to the
fullest extent permitted by applicable law, 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 reasonable 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.
4
5.8 Waiver. The
Escrow Agent hereby waives any and all right, title, interest or claim of any
kind (each, a “Claim”) in or to any distribution from the Trust Account and
hereby agrees not to seek recourse, reimbursement, payment or satisfaction for
any Claim against the Trust Account for any reason whatsoever.
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 EBC is a third party beneficiary of this Agreement and this
Agreement may not be modified or changed without the prior written consent of
EBC.
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:
If to the Company, to:
Lone Oak
Acquisition Corporation
Room 1708
Dominion Centre
00-00
Xxxxx’x Xxxx Xxxx
Xxxxxxx,
Xxxx Xxxx
Attn: Chief Executive
Officer
5
If to an Initial 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:
EarlyBirdCapital, Inc.
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
and:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
Xxxxxxxx, Esq.
and:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxx 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 Trust
Account. The Company shall give the Escrow Agent written
notification of the liquidation of the Trust Account in the event that the
Company fails to consummate a Business Combination within the time period(s)
specified in the Prospectus.
6.8 Counterparts. This
Agreement may be executed in several counterparts, each one of which may be
delivered by facsimile or electronic transmission via PDF and each of which
shall constitute an original, and together shall constitute but one
instrument.
6
WITNESS the execution of this Agreement
as of the date first above written.
|
LONE
OAK ACQUISITION CORPORATION
|
|||
|
By:
|
|||
|
INITIAL
SHAREHOLDERS:
|
|||
|
Xxxxx
Xxxxx
|
|||
|
Baris
Merzeci
|
|||
|
Can
Aydinoglu
|
|||
|
BBS
CAPITAL FUND, LP
|
|||
|
By:
|
|
||
|
XXXXXX
HOLDINGS LLC
|
|||
|
By:
|
|
||
|
RAMPANT
DRAGON, LLC
|
|||
|
By:
|
|
||
|
CONTINENTAL
STOCK TRANSFER
|
|||
|
&
TRUST COMPANY
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
7
EXHIBIT
A
|
Name and Address of
Initial Shareholder
|
Number
of Shares
|
Share
Certificate Number
|
Date of
Insider Letter
|
||||||
|
Xxxxx
Xxxxx
|
483,750
|
||||||||
|
Baris
Merzeci
|
10,000
|
||||||||
|
Can
Aydinoglu
|
10,000
|
||||||||
|
BBS
Capital Fund, LP
|
473,750
|
||||||||
|
Xxxxxx
Holdings LLC
|
473,750
|
||||||||
|
Rampant
Dragon, LLC
|
172,500
|
||||||||
8
