EXHIBIT 10.13
FORM OF
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of _______________ __, 2006
("Agreement"), by and among NAVITAS INTERNATIONAL CORPORATION, a Delaware
corporation ("Company"), XXXXX X. XXXX, XXXXX X. XXXXX, XXXXXX XXXX, X.X. XXXX,
X.X. XXXXXXX, XXXXXXX X. XXXXXX, XXXXXX XXXXX, SERVJEET X. XXXXXX, X.X. XXXXXX,
XXXXX X. XXXX (collectively "Initial Stockholders") and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation ("Escrow Agent").
WHEREAS, the Company has entered into an Underwriting Agreement, dated
________ __, 2006 ("Underwriting Agreement"), with FTN Midwest Securities Corp.,
as representative of the underwriters listed on Schedule I thereto
("Representative"), pursuant to which, among other matters, the Representative
and the underwriters have agreed, severally and not jointly, to purchase
20,000,000 units ("Units") of the Company, and up to an additional 3,000,000
Units pursuant to an over-allotment option. Each Unit consists of one share of
the Company's Common Stock, par value $.0001 per share, and two Warrants, each
Warrant to purchase one share of Common Stock, all as more fully described in
the Company's final Prospectus, dated __________ __, 2006 ("Prospectus")
comprising part of the Company's Registration Statement on Form S-1 (File No.
333-130697) as filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended ("Registration Statement"), declared
effective on ___________ __, 2006 ("Effective Date").
WHEREAS, the Initial Stockholders have agreed as a condition of the
Underwriters' (as such term is defined in the Underwriting Agreement) obligation
to purchase the Units, to deposit all of 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 completion of a business combination as more fully
described in the Prospectus (the "Business Combination"), whereby one-third of
the Escrow Shares of each Initial Stockholder will be released from escrow upon
the completion of the Business Combination, one-third of the Escrow Shares of
each Initial
Stockholder will be released six months after the completion of the
Business Combination and the final one-third of the Escrow Shares of each
Initial Stockholder will be released upon the first anniversary of the
completion of the Business Combination (the "Escrow Period"). On each such date,
the Escrow Agent shall, upon written instructions from each Initial Stockholder,
disburse each of the Initial Stockholder's Escrow Shares to such Initial
Stockholder; provided, however, that in the event that the Closing Time (as
defined in the Underwriting Agreement) does not occur, then the Escrow Agent
shall promptly release the Escrow Shares to the Initial Stockholders; provided
further, 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, after the
Company consummates a Business Combination and the Company or the surviving
entity of such Business Combination subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in all of the
stockholders of the Company or 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 Vice-President, Finance 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, or (iii) pursuant to a qualified domestic relations order;
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 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 Sections 5.2 and 5.7 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.
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.
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 upon consent by the Representative with
such consent not to be unreasonably withheld, the Escrow Shares held
hereunder. If no new escrow agent is so appointed within the sixty (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.
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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 Company and a majority of the Initial
Stockholders, 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.
5.8. Trust Fund Waiver. The Escrow Agent has no right, title,
interest, or claim of any kind ("Claim") in or to any monies in the Trust
Account (as defined in that certain Investment Management Trust Agreement,
dated as of the date hereof, by and between the Company and Continental
Stock Transfer & Trust Company, as trustee of the Trust Account), and
hereby waives any Claim it may have in the future in or to any monies in
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. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of
New York or the United States District Court for the Southern District of
New York (each, a "New York Court"), and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each of the parties
hereby waives any objection to such exclusive jurisdiction and that such
courts represent an inconvenient forum. Each of X.X. Xxxx and X.X. Xxxxxx
(the "Non-U.S. Stockholders") has appointed Servjeet X. Xxxxxx, in his
capacity as General Counsel and Vice President of the Company, as their
authorized agent (the "Authorized Agent") upon whom process may be served
in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York
Court. Such appointment shall be irrevocable. The Company and the Non-U.S.
Stockholders represent and warrant that the Authorized Agent has agreed to
act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect,
effective service of process upon the respective Non-U.S. Stockholder.
6.2. Amendment. Each of the Initial Stockholders hereby acknowledges
that this Agreement may not be amended, changed, waived, altered or
modified without the prior written consent of the Representative, which
consent shall not be unreasonably withheld.
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 be 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.
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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, by private national courier service, or be mailed, certified
or registered mail, return receipt requested, postage prepaid, and shall
be deemed given when so delivered personally or, if sent by private
national courier service, on the next business day after delivery to the
courier, or if mailed, two business days after the date of mailing, as
follows:
If to the Company, to
Navitas International Corporation
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Servjeet X. Xxxxxx, General Counsel
If to an Initial Stockholder, 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, XX 00000
Attn: Chairman
A copy of any notice sent hereunder shall be sent to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
and:
FTN Midwest Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Syndicate Department
and:
Xxxxxx Xxxx & Xxxxxx LLP
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx-Xxxx X. Xxxxx, 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.
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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.
[Remainder of Page Intentionally Left Blank]
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WITNESS the execution of this Stock Escrow Agreement as of the date first above
written:
NAVITAS INTERNATIONAL CORPORATION
By:
--------------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY
By:
--------------------------------------------
Name:
Title:
INITIAL STOCKHOLDERS:
-------------------------------------------------
Xxxxx X. Xxxx
-------------------------------------------------
Xxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx Xxxx
-------------------------------------------------
X.X. Xxxx
-------------------------------------------------
X.X. Xxxxxxx
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-------------------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------------------
Xxxxxx Xxxxx
-------------------------------------------------
Servjeet X. Xxxxxx
-------------------------------------------------
X.X. Xxxxxx
-------------------------------------------------
Xxxxx X. Xxxx
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EXHIBIT A
NAME & ADDRESS OF STOCK CERTIFICATE DATE OF INSIDER
INITIAL STOCKHOLDER NUMBER OF SHARES NUMBER LETTER
Xxxxx X. Xxxx 1,208,333 __________, 0000
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx 1,208,333 __________, 2006
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxx 250,000 __________, 2006
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
X.X. Xxxx 250,000 __________, 2006
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
X.X. Xxxxxxx 250,000 __________, 2006
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 250,000 __________, 2006
Chairman Emeritus
c/o MapInfo Corp.
Xxx Xxxxxx Xxxx
Xxxx, XX 00000
Xxxxxx Xxxxx 604,167 __________, 2006
00 Xxxxx Xxxx, Xxx. 0
Xxxxxxxxx, XX 00000
Servjeet X. Xxxxxx 604,167 __________, 2006
0 Xxxxxx Xxxx
Xxxxxxx, XX 00000
X.X. Xxxxxx 250,000 __________, 2006
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxx 125,000 __________, 2006
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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