STOCK ESCROW AGREEMENT
STOCK
ESCROW AGREEMENT, dated as of __________, 2007 (“Agreement”), by and among
TREMISIS ENERGY ACQUISITION CORPORATION II, a Delaware corporation (“Company”),
XXXXXXXX
X. XXXXX, XXXXXX X. XXXXXX, XXX XXXXXX, XXXXXXX X. XXXXXX, XXXXXXX
X. XXXXXX, XXXX
XXXXXXXXX, XXXX XXXXXX, XXXXX XXXXX, XXXX XXXXXXX, XXXX XXXXXXXXX, XXXXXX
XXXXXX, XXXXX XXXXXXXX, XXXXXXX XXXXXX, XXXXX XXXXXX, XXX XXXX and DR. XXXX
XXXXXX (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 _________, 2007
(“Underwriting Agree-ment”), with Xxxxxxx Xxxxx & Co., Inc. (“Xxxxxxx
Xxxxx”) acting as representative of the several underwriters (collectively, the
“Underwriters”), pur-suant to which, among other matters, the Underwriters have
agreed to purchase 9,500,000 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 full warrant to purchase one share of Common
Stock, all as more fully described in the Company’s final Prospectus, dated
_______, 2007 (“Prospectus”) com-prising part of the Company’s Registration
Statement on Form S-1 (File No. 333-145625) under the Securities Act
of 1933, as amended (“Registration Statement”), declared effective on
__________, 2007 (“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 (collec-tively “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, her or its respective Escrow Shares,
to be held and disbursed subject to the terms and conditions of this Agree-ment.
Each Initial Stockholder acknowledges that the certi-ficate representing his,
her or its 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 one year after the consummation
of a Business Combination (as defined in the Registration Statement) (“Escrow
Period”), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder’s Escrow Shares (and any
applicable stock power) to such Initial Stockholder; 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
Shares; provided, however, that if the Underwriters exercise their
over-allotment option to purchase an additional 1,425,000 Units of the Company
(as described in the Prospectus), the Initial Stockholders agree that the Escrow
Agent shall return to the Company for cancellation,
at no
cost, the number of Escrow Shares held by each Initial Stockholder determined
by
multiplying (a) the product of (i) 356,250, multiplied by (ii) a fraction,
(x) the numerator of which is the number of Escrow Shares held by each Initial
Stockholder, and (y) the denominator of which is the total number of Escrow
Shares, by (b) a fraction, (i) the numerator of which is 1,425,000
minus
the
number of shares of Common Stock purchased by the Underwriters upon the exercise
of their over-allotment option, and (ii) the denominator of which is
1,425,000;
provided
further, however, that if the Company consummates a Business Combination in
which holders of more than 20% of the shares sold in the IPO exercise their
conversion rights (as described more fully in the Prospectus), the Initial
Stockholders agree that the Escrow Agent shall return to the Company for
cancellation a number of Escrow Shares held by them so that the Initial
Stockholders will collectively own no more than 23.8% of the Company's
outstanding Common Stock upon consummation of such Business Combination (without
giving effect to any shares that may be issued in the Business Combination).
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
(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 Chairman of the Board, President or other authorized officer
of
the Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated or such conditions have been achieved,
as
applicable, release the Escrow Shares to the Initial Stockholders. 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 Stockh-olders shall retain all of their rights
as
stock-holders of the Company during the Escrow Period, includ-ing, 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.
In
order
to induce the Underwriters to enter into the Underwriting Agreement, the Initial
Stockholders will not, without the prior written consent of Xxxxxxx Xxxxx,
offer, sell, contract to sell, pledge or otherwise dispose of (or enter into
any
transaction which is designed to, or might reasonably be expected to, result
in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Initial Stockholders or any
affiliate of the Initial Stockholders or any person in privity with the Initial
Stockholders or any affiliate thereof), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission (the “Commission”) in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations of the Commission promulgated thereunder with respect to, any Escrow
Shares, or publicly announce an intention to effect any such transaction, during
the period in which such Escrow Shares are held in escrow hereunder,
except
(i) to
an entity’s members upon its liquidation, (ii) by bona fide gift to a member of
an 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, (iii) by virtue of the laws of descent and distribution upon
death of any Initial Stockholder, (iv) pursuant to a qualified domestic
relations order or (v) by 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 shares were originally purchased; provided,
however,
that
such 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
and no filing by any party under the Exchange Act shall be required or shall
be
voluntarily made in connection with such disposition or transfer.
2
4.4 Insider
Letters.
Each of
the Initial Stock-holders has executed a letter agreement with Xxxxxxx Xxxxx
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.
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 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
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 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 circum-stances 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.
3
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 Initial
Stock-holders 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.
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 Shares 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 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, 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.
4
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 (whether
of the State of New York or any other jurisdiction that would cause the
application of the laws of any jurisdiction other than the State of New York).
The Company 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, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts represent
an
inconvenience forum. Any such process or summons 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 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 Xxxxxxx Xxxxx.
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. It
may be
executed in several original or facsimile counterparts, each one of which shall
constitute an original, and together shall constitute but one
instrument
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:
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
Attn:
Chairman
5
If
to a
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,
Xxx Xxxx 00000
Attn:
Chairman
A
copy of
any notice sent hereunder shall be sent to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
and:
Xxxxxxx
Xxxxx & Co., Inc.
4
World
Financial Center
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Facsimile:
( ) -
and:
Xxxxxxx
Xxxxx LLP
000
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attn:
W.
Xxxx Xxxxx, Esq.
Facsimile:
(000) 000-0000
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 Company.
The
Company shall give the Escrow Agent written notification of the liquidation
of
the Company in the event that the Company fails to consummate a Business
Combination within the time period specified in the Prospectus.
6
WITNESS
the execution of this Agreement as of the date first above written.
|
TREMISIS
ENERGY ACQUISITION CORPORATION II
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
INITIAL
STOCKHOLDERS:
|
||
| |
|
|
|
Xxxxxxxx
X. Xxxxx
|
||
|
Xxxxxx
X. Xxxxxx
|
||
|
Xxx
Xxxxxx
|
||
|
Xxxxxxx
X. Xxxxxx
|
||
|
Xxxxxxx
X. Xxxxxx
|
||
|
Xxxx
Xxxxxxxxx
|
||
|
Xxxx
Xxxxxx
|
||
|
Xxxxx
Xxxxx
|
||
|
Xxxx
Xxxxxxx
|
||
|
Xxxx
Xxxxxxxxx
|
||
|
Xxxxxx
Xxxxxx
|
||
|
Xxxxx
XxXxxxxx
|
||
|
Xxxxxxx
Xxxxxx
|
||
|
Xxxxx
Xxxxxx
|
||
|
Xxx
Xxxx
|
||
|
Dr.
Xxxx Xxxxxx
|
||
|
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
7
EXHIBIT
A
|
Name
and Address of
Initial
Stockholder
|
|
Number
of
Shares
|
|
Stock
Certificate
Number
|
|
Date
of
Insider
Letter
|
|
|
|
|
|
|
|
|
|
Xxxxxxxx
X. Xxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
|
1,071,875
|
|
1
|
|
November
1, 2007
|
|
|
|
|
|
|
|
|
|
Xxxxxx
X. Xxxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
|
1,071,875
|
|
2
|
|
November
1, 2007
|
|
|
|
|
|
|
|
|
|
Xxx
Xxxxxx
c/o
Saybrook Capital, LLC
000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
|
|
150,000
|
|
3
|
|
November
1, 2007
|
|
|
|
|
|
|
|
|
|
Xxxxxxx
X. Xxxxxx
0000
Xxxx Xxxxxx Xxxxx
Xxxxx,
Xxxxxxxxxx 00000
|
|
150,000
|
|
4
|
|
November
1, 2007
|
|
|
|
|
|
|
|
|
|
Xxxxxxx
X. Xxxxxx
Tremisis
Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
|
25,000
|
|
5
|
|
November
1, 2007
|
|
Xxxx
Xxxxxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
42,185
|
6
|
November
1, 2007
|
|||
|
Xxxx
Xxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
37,500
|
7
|
November
1, 2007
|
|||
|
Xxxxx
Xxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
28,125
|
8
|
November
1, 2007
|
|||
|
Xxxx
Xxxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
28,125
|
9
|
November
1, 2007
|
|||
|
Xxxx
Xxxxxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
28,125
|
10
|
November
1, 2007
|
|||
|
Xxxxxx
Xxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
28,125
|
11
|
November
1, 2007
|
|||
|
Xxxxx
XxXxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
14,063
|
12
|
November
1, 2007
|
|||
|
Xxxxxxx
Xxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
14,063
|
13
|
November
1, 2007
|
|||
|
Xxxxx
Xxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
14,063
|
14
|
November
1, 2007
|
|||
|
Xxx
Xxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
14,063
|
15
|
November
1, 2007
|
|||
|
Dr.
Xxxx Xxxxxx
c/o
Tremisis Energy Acquisition Corporation II
00000
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
|
14,063
|
16
|
November
1, 2007
|
