STOCK ESCROW AGREEMENT
THIS
STOCK ESCROW AGREEMENT, dated as of March 25, 2009 ("Agreement"), is
made by and among GO PUBLIC ACQUISITION CORPORATION II,
a Nevada corporation ("Company"),
the person(s) set forth on Exhibit A
hereto (the "Initial Stockholder", whether one
or more) and ESCROW, LLC, a Virginia limited liability
company ("Escrow Agent").
WHEREAS,
the Company is undertaking an offering of securities pursuant to Rule 419
promulgated under the Securities Act of 1933, as amended (the “Offering”);
and
WHEREAS,
each Initial Stockholder has agreed as a condition of the Offering to deposit
its shares of common stock of the Company, as set forth opposite their
respective names in Exhibit A attached hereto (collectively "Initial Stockholder
Shares"), in escrow as hereinafter provided;
WHEREAS,
pursuant to Rule 419, the Company will be required to deposit into escrow all
shares issued to investors (“Investor Shares”) in the Offering (“Investors”);
and
WHEREAS,
the Company and the Initial Stockholder desire that the Escrow
Agent accept the Initial Stockholder Shares and
Investor Shares (collectively “Escrow Shares”), in escrow, to be held
and disbursed as hereinafter provided.
THEREFORE,
IT IS HEREBY AGREED AS FOLLOWS:
1.
APPOINTMENT OF ESCROW AGENT. The Company and the Initial Stockholder 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 of a Registration
Statement filed in accordance with Rule 419 (the “Effective Date”), each of the
Initial Stockholder shall deliver to the Escrow Agent certificates representing
its respective Initial Stockholder Shares, to be held and disbursed subject to
the terms and conditions of this Agreement. After the Effective Date, the
Company shall deliver to the Escrow Agent the Escrow Shares issued to Investors
to be held and disbursed subject to the terms and conditions of this
Agreement.
3.
DISBURSEMENT OF THE ESCROW SHARES. The Escrow Agent shall hold the Escrow Shares
until the earlier of (i) eighteen (18) months following the date of a business
combination; (ii) liquidation of the Company; or (iii) such date on which the
Escrow Agent receives instructions for release from the Company ("Escrow
Period"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Escrow Shares as directed by the Company. Upon
disbursement of the Escrow Shares, the Escrow Agent shall have no further duties
hereunder and this Agreement shall terminate.
4. RIGHTS
OF INITIAL STOCKHOLDER AND INVESTORS IN ESCROW SHARES.
4.1
VOTING RIGHTS AS A STOCKHOLDER. The Initial Stockholder and Investors 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 Stockholder and Investors, 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.
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4.3
RESTRICTIONS ON TRANSFER. During the Escrow Period, no sale, transfer or other
disposition may be made of any or all of the Investor 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 or Investor transferring the
Escrow Shares. During the Escrow Period, the Initial Stockholder and
Investors shall not pledge or grant a security interest in the Escrow Shares or
grant a security interest in their rights under this
Agreement. Notwithstanding all of the foregoing, the Initial
Stockholder may gift any of its shares. Such gift shall be effective when a Gift
Share Acceptance Letter is presented to Escrow Agent. Escrow Agent shall then
deduct from the Initial Stockholder Shares the number of shares so gifted and
transfer them on Escrow Agent’s records to the donee.
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 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. [Omitted.]
5.4
FURTHER ASSURANCES. From time to time on and after the date hereof, the Company
and the Initial Stockholder 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.
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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.
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
Virginia.
6.2
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.
6.3
HEADINGS. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation
thereof.
6.4
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.
6.5
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:
Go Public Acquisition Corporation
II
0000
Xxxxx Xx, Xxxxx 000X
Xxxxxxx,
XX 00000
If to an
Initial Stockholder, to his address as set forth in Exhibit A.
and if to
the Escrow Agent, to:
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Escrow, LLC
000 Xxxx
Xx.
Xxxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Attention:
Xxxxxxx X. Xxxxxxx
Fax:
000-000-0000
Email:
xxxxxxxx@xxxxxxxxx.xxx
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.
6.6
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 an acquisition within the time period(s)
specified in its registration statement.
7. [Omitted.]
WITNESS the execution of
this Agreement as of the date first above
written.
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ESCROW
AGENT:
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ESCROW,
LLC
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By:
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/s/
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Vice-President
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COMPANY:
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GO
PUBLIC ACQUISITION CORPORATION II
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By:
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/s/
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Name:
Xxxxxx X. Xxxxxxx
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Title:
President
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4
EXHIBIT
A
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Stock
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Name
and Address of
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Number
of
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Certificate
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Initial Stockholder
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Shares
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Number
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5
