STOCK ESCROW AGREEMENT
STOCK
ESCROW AGREEMENT, dated as of __________, 2007 (this “Agreement”),
by
and among Secure America Acquisition Corporation, a Delaware corporation
(the
“Company”),
SECURE AMERICA ACQUISITION HOLDINGS, LLC, a Delaware limited liability company,
S. XXXX XXXXXXXX, XXXXXX X. XXXXXXX, XXX XXXXXXXXXX, XXXX XXXXXX and XXXXX
X.
XXXXXXX (collectively,
the “Initial
Stockholders”)
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a
New York corporation (the
“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated [●],
2007
(the “Underwriting
Agreement”),
with
SunTrust
Xxxxxxxx Xxxxxxxx, Inc., as representative of the underwriters
(“SunTrust”),
pursuant to which, among other matters, the underwriters have agreed to purchase
units (the “Units”)
of the
Company. Each Unit consists of one share of the Company’s common stock, par
value $.0001 per share (the “Common
Stock”),
and
one warrant, each warrant to purchase one share of Common Stock (the
“Warrant”),
all
as more fully described in the Company’s final Prospectus, dated [●],
2007
(the “Prospectus”)
comprising part of the Company’s Registration Statement on Form S-1
(File No. 333-144028)
under
the Securities Act of 1933, as amended (the “Registration
Statement”),
declared effective on [●],
2007
(the “Effective
Date”).
WHEREAS,
the Initial Stockholders have agreed, as a condition of the sale of the Units
to
SunTrust, to deposit all of the shares of Common Stock of the Company
outstanding prior to such sale, as set forth opposite their respective names
in
Exhibit
B
attached
hereto (collectively, the “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.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants,
representations and warranties contained herein and intending to be legally
bound hereby, the parties agree as follows:
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 Agreement.
Each Initial Stockholder acknowledges that the certificate representing his,
her
or its Escrow Shares bears a legend reflecting 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 the Company’s initial business combination (as described in the Registration
Statement) (the “Escrow
Period”),
on
which date it shall, upon written instructions from the Company and each Initial
Stockholder, disburse each of the Initial Stockholder’s Escrow Shares (and any
applicable stock power) to such Initial Stockholder or its Permitted
Transferees, as defined below; provided,
however,
that if
the Escrow Agent is notified by the Company pursuant to Section 6.8 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,
that
if, after the Company consummates its initial business combination (as described
in the Registration Statement), the Company (or the surviving entity)
subsequently consummates a liquidation, merger, stock exchange or other similar
transaction that 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
(or the surviving entity), 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 respective Escrow Shares to the Initial
Stockholders or their Permitted Transferees upon consummation of such
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 and their Permitted Transferees 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)
to
persons or entities controlling, controlled by, or under common control with
such person or entity or to any stockholder, member, partner or limited partner
of such person or entity or (ii) to family members and trusts of Initial
Stockholders or their permitted transferees set forth in (i) above for estate
planning purposes or, upon the death of an Initial Stockholder or its
permitted transferee set forth in (i) above, to such person’s estate or
beneficiaries (the “Permitted
Transferees”);
in each case, such transferee will be subject to the same transfer restrictions
as the Initial Stockholders until after the Company completes its initial
business combination;
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 SunTrust, the Company and the Initial
Stockholder transferring the Escrow Shares. During the Escrow Period, the
Initial Stockholders and their Permitted Transferees shall not pledge or grant
a
security interest in the Escrow Shares or grant a security interest in their
rights under this Agreement without the prior written consent of the
Company.
4.4 Insider
Letters.
Each of
the Initial Stockholders has executed a letter agreement with SunTrust and
the
Company, dated as indicated on Exhibit
B
hereto,
and which is filed as an exhibit to the Registration Statement (each, an
“Insider
Letter”),
respecting the rights and obligations of such Initial Stockholder in certain
events, including but not limited to the liquidation of the
Company.
2
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 the Escrow Agent 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 by the Escrow
Agent 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 the fees set forth on Schedule
A
hereto
for all services rendered by it hereunder. The Escrow Agent shall also be
entitled to reimbursement 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 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
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 the Escrow Agent 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 thereof
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 appointed by the Company 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.
3
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 subject to all of
the
terms of this Agreement and the delivery, by the Escrow Agent, of the Escrow
Shares to such successor escrow agent.
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 Waiver
of Claims against Trust Account.
Notwithstanding any other provision of this Agreement, the Escrow Agent
confirms
its understanding that the Company has established the Trust Account (as
defined
in the Prospectus) relating to the Units being sold pursuant to the Prospectus.
The Escrow Agent acknowledges that the Trust Account will exist for the
benefit
of the Company’s public stockholders and the monies from the Trust Account may
only be disbursed upon the occurence of certain events, as more fully described
in the Prospectus. The Escrow Agent agrees that neither it nor any of its
affiliates have or will have any right, title, interest or claim in or
to the
monies in the Trust Account, and the Escrow Agent hereby waives any and
all
right, title, interest of claim of any kind in or to any distribution of
any
property held in the Trust Account that it or its affiliates may have now
or in
the future and hereby agrees not to seek recourse, reimbursement, payment
or
satisfaction for any claim of any kind against the Trust Account for any
reason
whatsoever, including in respect of the Company’s indemnification obligations
set forth in this Agreement.
6.2 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). Each of the Company, the
Initial
Stockholders and the Escrow Agent 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. Each
of the
Company, the Initial Stockholders and the Escrow Agent hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any such process or summons to be served upon each of
the
Company, the Initial Stockholders and the Escrow Agent 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
6.7 hereof. Such mailing shall be deemed personal service and shall be legal
and
binding upon each of the Company, the Initial Stockholders and the Escrow
Agent
in any action, proceeding or claim.
6.3 Third
Party Beneficiaries.
Each of
the Initial Stockholders hereby acknowledges that SunTrust is an intended third
party beneficiary of this Agreement and this Agreement may not be modified
or
changed without the prior written consent of SunTrust.
6.4 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 SunTrust and
the party against whom such change or modification is to be enforced. 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.
6.5 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
6.6 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.
4
6.7 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:
|
0000
Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxx, Co-Chief Executive Officer
If
to an
Initial Stockholder, to his or its address set forth in Exhibit
B;
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
X.
Xxxxxx, Chairman
A
copy of
any notice sent hereunder shall be sent to:
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
0000
Xxxxxxxxx Xxxx, XX
Xxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxx
and:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, PC
The
Chrysler Building
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxx
X. Xxxx, Esq.
and:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxx, Esq.
5
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.
6.8 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.
(Remainder
of page intentionally left blank. Signature page to follow.)
6
WITNESS
the execution of this Agreement as of the date first above written.
| SECURE AMERICA ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
C. Xxxxxx XxXxxxxx
Title:
Co-Chief Executive Officer and Chairman
|
||
|
INITIAL
STOCKHOLDERS:
SECURE
AMERICA ACQUISITION HOLDINGS, LLC
|
||
| |
|
|
| By: | ||
|
Name:
C.
Xxxxxx XxXxxxxx
Title:
Chief Executive Officer
|
||
|
S. Xxxx Xxxxxxxx |
||
|
Xxxxxx X. XxXxxxx |
||
|
Xxx Xxxxxxxxxx |
||
|
Xxxxx X. Xxxxxxx |
||
|
Xxxx X. Xxxxxx |
||
|
CONTINENTAL
STOCK TRANSFER &
TRUST COMPANY
|
||
| |
|
|
| By: | ||
|
Name:
Xxxxxx X. Xxxxxx
Title:
Chairman
|
||
EXHIBIT
A
“Fee
Schedule”
EXHIBIT
B
|
Name
and Address of
Initial
Stockholder1
|
Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
|
|
Secure
America Acquisition Holdings, LLC
|
0
(void)
|
1
|
n/a
|
|
Xxxxxx
X. XxXxxxx
|
0
(void)
|
2
|
n/a
|
|
S.
Xxxx Xxxxxxxx
|
0
(void)
|
3
|
n/a
|
|
Xxxxx
X. Xxxxxxx
|
0
(void)
|
4
|
n/a
|
|
Xxxx
Xxxxxx
|
0
(void)
|
5
|
n/a
|
|
Xxx
Xxxxxxxxxx
|
0
(void)
|
6
|
n/a
|
|
Secure
America Acquisition Holdings, LLC
|
0
(void)
|
7
|
n/a
|
|
Secure
America Acquisition Holdings, LLC
|
2,360,000
|
8
|
[●],
2007
|
|
Xxxxxx
X. XxXxxxx
|
30,000
|
9
|
[●],
2007
|
|
S.
Xxxx Xxxxxxxx
|
30,000
|
10
|
[●],
2007
|
|
Xxxxx
X. Xxxxxxx
|
10,000
|
11
|
[●],
2007
|
|
Xxxx
Xxxxxx
|
20,000
|
12
|
[●],
2007
|
|
Xxx
Xxxxxxxxxx
|
50,000
|
13
|
[●],
2007
|
| 1 |
All
addresses c/o
0000
Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
|
