WARRANT ESCROW AGREEMENT
WARRANT
ESCROW AGREEMENT, dated as of _____________, 2007
(“Agreement”), by and among COLUMBUS ACQUISITION CORP., a Delaware corporation
(“Company”), COLUMBUS ACQUISITION HOLDINGS LLC, a Delaware limited liability
company (“Insider Purchaser”) and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a
New
York corporation (“Escrow
Agent”).
WHEREAS,
the Company has received a binding commitment
(“Subscription Agreements”)
from the
Insider Purchaser to purchase an aggregate of 3,650,000 warrants (“Insider
Warrants”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated __________, 2007
(“Underwriting Agreement”), with Lazard Capital Markets
LLC (“Lazard”), pursuant to which, among other matters, Lazard has agreed
to purchase 12,500,000 units (“Units”) of the Company. Each Unit consists of one
share of the Company’s common stock, par value $.0001 per share (“Common
Stock”), and one Warrant, each Warrant to purchase one share of Common Stock,
all as more fully described in the Company’s final prospectus, dated _________,
2007 (“Prospectus”), which is part of the Company’s Registration Statement on
Form S-1 (File No. 333-138890) under the Securities Act of 1933, as
amended (“Registration Statement”), declared effective on ________, 2007
(“Effective Date”).
WHEREAS,
the Insider Purchaser has agreed as a condition of the sale of the Units to
deposit its Insider Warrants, as set forth opposite its name in Exhibit A
attached hereto (collec-tively “Escrow Warrants”), in escrow as hereinafter
provided.
WHEREAS,
the Company and the Insider Purchaser desire that the Escrow Agent accept the
Escrow Warrants, in escrow, to be held and disbursed as hereinafter
provided.
IT
IS
AGREED:
1. Appointment
of Escrow Agent.
The
Company and the Insider Purchaser 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 Warrants.
Upon
issuance and receipt of certificates representing the Escrow Warrants, the
Insider Purchaser shall deliver such certificates to the Escrow Agent, to be
held and disbursed subject to the terms and conditions of this Agree-ment.
The
Insider Purchaser acknowledges that the certi-ficate representing its Escrow
Warrants is legended to reflect the deposit of such Escrow Warrants under this
Agreement.
3. Disbursement
of the Escrow Warrants.
The
Escrow Agent shall hold the Escrow Warrants until 30 days after the consummation
of a Business Combination (as such term is defined in the Registration
Statement) (“Escrow Period”), on which date it shall, upon written instructions
from the Insider Purchaser, disburse the Insider Purchaser’s Escrow Warrants to
the Insider Purchaser; pro-vided, 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 Warrants. The Escrow
Agent shall have no further duties hereunder after the disbursement or
destruction of the Escrow Warrants in accordance with this
Section 3.
4. Restrictions
on Transfer of Escrow Warrants.
During
the Escrow Period, no sale, transfer or other disposition may be made of any
or
all of the Escrow Warrants.
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 pro-tected in acting upon any order, notice, demand, certifi-cate,
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, termina-tion or rescission of this
Agree-ment 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 coun-sel 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 Warrants 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 com-mence-ment 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 discre-tion, may commence an action in
the
nature of interpleader in an appropriate court to determine ownership or
disposition of the Escrow Warrants or it may deposit the Escrow Warrants with
the clerk of any appropriate court or it may retain the Escrow Warrants 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 circum-stances the Escrow
Warrants 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 reason-able compensation from the Company
for
all services rendered by it hereunder. The Escrow Agent shall also be entitled
to reimburse-ment 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 disburse-ments 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 Insider Purchaser
shall deliver or cause to be delivered to the Escrow Agent such further
documents and instru-ments 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 Agree-ment, to evidence compliance herewith
or
to assure itself that it is protected in acting hereunder.
2
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 herein-after provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over to
a
suc-cessor escrow agent appointed by the Company, the Escrow Warrants held
hereunder. If no new escrow agent is so appointed within the 60 day period
follow-ing the giv-ing of such notice of resignation, the Escrow Agent may
deposit the Escrow Warrants 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, pro-vided, however, that such resignation shall become effec-tive
only
upon acceptance of appointment by a successor escrow agent as provided in
Section 5.5.
5.7 Liability.
Notwithstanding anything herein to the con-trary, 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 Intentionally
Omitted.
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.
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:
|
|
000
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
|
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Chairman
3
If
to the
Insider Purchaser, to its 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:
LeBoeuf,
Lamb, Xxxxxx & XxxXxx LLP
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxx, Esq.
and:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxx
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 of 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.
4
WITNESS
the execution of this Agreement as of the date first above written.
By:
______________________________
INSIDER
PURCHASER:
COLUMBUS
ACQUISITION HOLDINGS LLC
By:
___________________________
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
By:________________________________
Name:
Title:
5
EXHIBIT
A
|
Name
and Address of
Insider
Purchaser
|
Number
of
Warrants
|
Warrant
Number
|
Date
of
Subscription
Agreement
|
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