STOCK ESCROW AGREEMENT
Exhibit 10.11
STOCK
ESCROW AGREEMENT, dated as of _____________, 2007 (“Agreement”), by and among
POLARIS ACQUISITION CORPORATION, a Delaware corporation (“Company”), XXXXX
BUSINESS VENTURES XX, LLC, PRAESUMO PARTNERS, LLC, XXXXX HOLDINGS, LLC, VINCO
VINCERE VICI VICTUM LLC, XXXXX XXXXXX, MERITAGE FARMS LLC, CLOOBECK COMPANIES,
LLC, GRANITE CREEK PARTNERS, L.L.C., ROXBURY CAPITAL GROUP LLC INCENTIVE SAVINGS
PLAN, ALERION EQUITIES, LLC and ODESSA, LLC (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 Agreement”), with Lazard Capital Markets LLC (“Lazard”) acting as
representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
18,000,000 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 to purchase one share of Common Stock, all as more fully described
in
the Company’s final Prospectus, dated _________, 2007 (“Prospectus”) comprising
part of the Company’s Registration Statement on Form S-1
(File No. 333-145759) 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 (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 one year after the Company
consummates a Business Combination (as such term is 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; provided,
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, that if the Underwriters
exercise their over-allotment option to purchase an additional 2,700,000 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) 675,000, 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 2,700,000 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 2,700,000;
provided further, that if, after the Company consummates a Business Combination,
(i) 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, or (ii) the last sales price
of a
share of Common Stock equals or exceeds $18.00 per share for any 20 trading
days
within any 30-trading day period, then the Escrow Agent will, upon receipt
of a
certificate, executed by the Chief Executive 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, 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 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.
4.4 Insider
Letters.
Each of
the Initial Stock-holders has executed a letter agreement with Lazard 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 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,
nonappealable 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 reasonable compensation from the Company
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 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, 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.
5.8 Waiver.
Notwithstanding anything herein to the contrary, the Escrow Agent hereby waives
any and all right, title, interest or claim of any kind (“Claim”) in or to any
distribution of 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, without giving
effect to conflicts of law principles that would result in the application
of
the substantive laws of another jurisdiction. 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, 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.
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 Lazard.
6.3 Entire
Agreement.
This
Agreement together with the Insider Letters contain 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. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original, and together shall constitute one and the same
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:
|
Polaris
Acquisition Corporation
0000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx
Xxx,
Xxx Xxxxxx 00000
Attn: __________________
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
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:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
and:
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxxxxx
X. Xxxxxxx, 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.
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
and a
liquidation and dissolution of the Company is effectuated.
WITNESS
the execution of this Agreement as of the date first above written.
POLARIS
ACQUISITION CORPORATION
By:________________________________
Name:
Title:
INITIAL
STOCKHOLDERS:
XXXXX
BUSINESS VENTURES XX, LLC
By:
______________________________
Name:
Title:
PRAESUMO
PARTNERS, LLC
By:
______________________________
Name:
Title:
XXXXX
HOLDINGS, LLC
By:
______________________________
Name:
Title:
VINCO
VINCERE VICI VICTUM LLC
By:
______________________________
Name:
Title:
______________________________
Xxxxx
Xxxxxx
MERITAGE
FARMS LLC
By:
______________________________
Name:
Title:
CLOOBECK
COMPANIES, LLC
By:
______________________________
Name:
Title:
GRANITE
CREEK PARTNERS, L.L.C.
By:
______________________________
Name:
Title:
ROXBURY
CAPITAL GROUP LLC INCENTIVE SAVINGS PLAN
By:
______________________________
Name:
Title:
ALERION
EQUITIES, LLC
By:
______________________________
Name:
Title:
ODESSA,
LLC
By:
______________________________
Name:
Title:
CONTINENTAL STOCK
TRANSFER
&
TRUST COMPANY
By:________________________________
Name:
Title:
EXHIBIT
A
|
Name
and Address of
Initial
Stockholder
|
Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
|
