EXHIBIT 10.16
ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated May 8, 2006 is executed and delivered
by and among TREMISIS ENERGY ACQUISITION CORPORATION, a Delaware corporation
("Tremisis"), ▇▇▇▇▇ ▇. ▇▇▇, as the RAM Stockholders' Representative, being the
representative of the former stockholders of RAM Energy, Inc., a Delaware
corporation (the "Representative"), and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as escrow agent (the "Escrow Agent").
Tremisis, RAM Energy, Inc. ("RAM"), the stockholders of RAM, and RAM Energy
Acquisition, Inc., a Delaware corporation and wholly-owned subsidiary of
Tremisis ("Merger Subsidiary"), are the parties to an Agreement and Plan of
Merger and Reorganization dated as of October 20, 2005 (the "Merger Agreement")
pursuant to which the Merger Subsidiary has merged with and into RAM so that RAM
has become a wholly-owned subsidiary of Tremisis. Pursuant to the Merger
Agreement, Tremisis is to be indemnified in certain respects. The parties desire
to establish an escrow fund as collateral security for the indemnification
obligations under the Merger Agreement. The Representative has been designated
pursuant to the Merger Agreement to represent all of the former stockholders of
RAM (the "Stockholders") and each Permitted Transferee (as hereinafter defined)
of the Stockholders (the Stockholders and all such Permitted Transferees are
hereinafter referred to collectively as the "Owners"), and to act on their
behalf for purposes of this Agreement. Capitalized terms used herein which are
not otherwise defined herein shall have the meanings ascribed to them in the
Merger Agreement.
The parties agree as follows:
1. (a) Concurrently with the execution hereof, each of the Stockholders is
delivering to the Escrow Agent, to be held in escrow pursuant to the terms of
this Agreement, stock certificates issued in the name of such Stockholder
representing twelve and one-half percent (12.5%) of the total number of shares
of Parent Common Stock received by such Stockholder pursuant to the Merger
Agreement, together with ten (10) assignments separate from certificate,
executed in blank by such Stockholder. The shares of Parent Common Stock
represented by the stock certificates so delivered by the Stockholders to the
Escrow Agent are herein referred to in the aggregate as the "Escrow Fund." The
Escrow Agent shall maintain a separate account for each Stockholder's, and
subsequent to any transfer permitted pursuant to Paragraph 1(e) hereof, each
Owner's, portion of the Escrow Fund.
(b) The Escrow Agent hereby agrees to act as escrow agent and to hold,
safeguard and disburse the Escrow Fund pursuant to the terms and conditions
hereof. It shall treat the Escrow Fund as a trust fund in accordance with the
terms of this Agreement and not as the property of Tremisis. The Escrow Agent's
duties hereunder shall terminate upon its distribution of the entire Escrow Fund
in accordance with this Agreement.
(c) Except as herein provided, the Owners shall retain all of their rights
as stockholders of Tremisis with respect to shares of Parent Common Stock
constituting the Escrow Fund during the period the Escrow Fund is held by the
Escrow Agent (the "Escrow Period"), including, without limitation, the right to
vote their shares of Parent Common Stock included in the Escrow Fund.
(d) During the Escrow Period, all dividends payable in cash with respect to
the shares of Parent Common Stock included in the Escrow Fund shall be paid to
the Owners, 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 Fund" shall
be deemed to include the Non-Cash Dividends distributed thereon, if any.
(e) During the Escrow Period, no sale, transfer or other disposition may be
made of any or all of the shares of Parent Common Stock in the Escrow Fund
except (i) to a Permitted Transferee (as hereinafter defined), (ii) by virtue of
the laws of descent and distribution upon death of any Owner, 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. As used in
this Agreement, the term Permitted Transferee shall include: (x) members of a
Stockholder's "Immediate Family;" (y) an entity in which (A) a Stockholder
and/or members of a Stockholder's Immediate Family beneficially own 100% of such
entity's voting and non-voting equity securities, or (B) a Stockholder and/or a
member of such Stockholder's Immediate Family is a general partner and in which
such Stockholder and/or members of such Stockholder's Immediate Family
beneficially own 100% of all capital accounts of such entity; and (z) a
revocable trust established by a Stockholder during his lifetime for the benefit
of such Stockholder or for the exclusive benefit of all or any of such
Stockholder's Immediate Family. As used in this Agreement, the term "Immediate
Family" means, with respect to any Stockholder, a spouse, parents, lineal
descendants, the spouse of any lineal descendant, and brothers and sisters (or a
trust, all of whose current beneficiaries are members of an Immediate Family of
the Stockholder). In connection with and as a condition to each permitted
transfer, the Permitted Transferee shall deliver to the Escrow Agent an
assignment separate from certificate executed by the transferring Stockholder,
or where applicable, an order of a court of competent jurisdiction, evidencing
the transfer of shares to the Permitted Transferee, together with ten (10)
assignments separate from certificate executed in blank by the Permitted
Transferee with respect to the shares transferred to the Permitted Transferee.
Upon receipt of such documents, the Escrow Agent shall deliver to Tremisis the
original stock certificate out of which the assigned shares are to be
transferred, together with the executed assignment separate from certificate
executed by the transferring Stockholder, or a copy of the applicable court
order, and shall request that Tremisis issue new certificates representing (m)
the number of shares, if any, that continue to be owned by the transferring
Stockholder, and (n) the number of shares owned by the Permitted Transferee as
the result of such transfer. Tremisis, the transferring Stockholder and the
Permitted Transferee shall cooperate in all respects with the Escrow Agent in
documenting each such transfer and in effectuating the result intended to be
accomplished thereby. During the Escrow Period, no Owner shall pledge or grant a
security interest in such Owner's shares of Parent Common Stock included in the
Escrow Fund or grant a security interest in their rights under this Agreement.
2. (a) Tremisis, acting through the current or former member of Tremisis's
Board of Directors who has been appointed by Tremisis to take all necessary
actions and make all decisions on behalf of Tremisis with respect to its rights
to indemnification under the Merger Agreement (the "Committee"), may make a
claim for indemnification pursuant to the Merger Agreement ("Indemnity Claim")
against the Escrow Fund by giving notice (a "Notice") to the Representative
(with a copy to the Escrow Agent) specifying (i) the covenant, representation,
warranty, agreement, undertaking or obligation contained in the Merger Agreement
which it asserts has been breached or otherwise entitles Tremisis to
indemnification, (ii) in reasonable detail, the nature and dollar amount of any
Indemnity Claim, and (iii) whether the Indemnity Claim results from a Third
Party Claim against Tremisis. The Committee also shall deliver to the Escrow
Agent (with a copy to the Representative), concurrently with its delivery to the
Escrow Agent of the Notice, a certification as to the date on which the Notice
was delivered to the Representative.
(b) If the Representative shall give a notice to the Committee
(with a copy to the Escrow Agent) (a "Counter Notice"), within 30 days following
the date of receipt (as specified in the Committee's certification) by the
Representative of a copy of the Notice, disputing whether the Indemnity Claim is
indemnifiable under the Merger Agreement, the Committee and the Representative
shall attempt to resolve such dispute by voluntary settlement as provided in
paragraph 2(c) below. If no Counter Notice with respect to an Indemnity Claim is
received by the Escrow Agent from the Representative within such 30-day period,
the Indemnity Claim shall be deemed to be an Established Claim (as hereinafter
defined) for purposes of this Agreement.
(c) If the Representative delivers a Counter Notice to the Escrow Agent,
the Committee and the Representative shall, during the period of 60 days
following the delivery of such Counter Notice or such greater period of time as
the parties may agree to in writing (with a copy to the Escrow Agent), attempt
to resolve the dispute with respect to which the Counter Notice was given. If
the Committee and the Representative shall reach a settlement with respect to
any such dispute, they shall jointly deliver written notice of such settlement
to the Escrow Agent specifying the terms thereof. If the Committee and the
Representative shall be unable to reach a settlement with respect to a dispute,
such dispute shall be resolved by arbitration pursuant to paragraph 2(d) below.
(d) If the Committee and the Representative cannot resolve a dispute prior
to expiration of the 60-day period referred to in paragraph 2(c) above (or such
longer period as the parties may have agreed to in writing), then such dispute
shall be submitted (and either party may submit such dispute) for arbitration
before a single arbitrator in Dallas, Texas, in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect and the
provisions of Section 10.12 of the Merger Agreement to the extent that such
provisions do not conflict with the provisions of this paragraph. The Committee
and the Representative shall attempt to agree upon an arbitrator; if they shall
be unable to agree upon an arbitrator within 10 days after the dispute is
submitted for arbitration, then either the Committee or the Representative, upon
written notice to the other, may apply for appointment of such arbitrator by the
American Arbitration Association. Each party shall pay the fees and expenses of
counsel used by it and 50% of the fees and expenses of the arbitrator and of
other expenses of the arbitration. The arbitrator shall render his decision
within 90 days after his appointment and may award costs to either the Committee
or the Representative if, in his sole opinion reasonably exercised, the claims
made by any other party had no reasonable basis and were arbitrary and
capricious. Such decision and award shall be in writing and shall be final and
conclusive on the parties, and counterpart copies thereof shall be delivered to
each of the parties. Judgment may be obtained on the decision of the arbitrator
so rendered in any Oklahoma state sitting in Oklahoma or Tulsa County, or any
federal court sitting in Oklahoma having jurisdiction, and may be enforced in
accordance with the law of the State of Oklahoma. If the arbitrator shall fail
to render his decision or award within such 90-day period, either the Committee
or the Representative may apply to any Oklahoma state court sitting in Oklahoma
or Tulsa County, or any federal court sitting in Oklahoma then having
jurisdiction, by action, proceeding or otherwise, as may be proper to determine
the matter in dispute consistently with the provisions of this Agreement. The
parties consent to the exclusive jurisdiction of the Oklahoma courts sitting in
Oklahoma or Tulsa County, Oklahoma, or any federal court having jurisdiction and
sitting in Oklahoma, for this purpose. The prevailing party (or either party, in
the case of a decision or award rendered in part for each party) shall send a
copy of the arbitration decision or of any judgment of the court to the Escrow
Agent.
(e) As used in this Agreement, "Established Claim" means any (i)
Indemnification Claim deemed established pursuant to the last sentence of
paragraph 2(b) above, (ii) Indemnification Claim resolved in favor of Tremisis
by settlement pursuant to paragraph 2(c) above, resulting in a dollar award to
Tremisis, (iii) Indemnification Claim established by the decision of an
arbitrator pursuant to paragraph 2(d) above, resulting in a dollar award to
Tremisis, (iv) Third Party Claim which has been sustained by a final
determination (after exhaustion of any appeals) of a court of competent
jurisdiction, or (v) Third Party Claim which the Committee and the
Representative have jointly notified the Escrow Agent has been settled in
accordance with the provisions of the Merger Agreement.
(f) (i) Promptly after an Indemnity Claim becomes an Established Claim, the
Committee and the Representative shall jointly deliver a notice to the Escrow
Agent (a "Joint Notice") directing the Escrow Agent to pay to Tremisis, and the
Escrow Agent promptly shall pay to Tremisis, an amount equal to the aggregate
dollar amount of the Established Claim (or, if at such time there remains in the
Escrow Fund less than the full amount so payable, the full amount remaining in
the Escrow Fund).
(ii) Payment of an Established Claim shall be made in shares of Parent
Common Stock, pro rata from the account maintained on behalf of each Owner. For
purposes of each payment, such shares shall be valued at the "Fair Market Value"
(as defined below). However, in no event shall the Escrow Agent be required to
calculate Fair Market Value or make a determination of the number of shares to
be delivered to Tremisis in satisfaction of any Established Claim; rather, such
calculation shall be included in and made part of the Joint Notice. The Escrow
Agent shall transfer to Tremisis out of the Escrow Fund that number of shares of
Parent Common Stock necessary to satisfy each Established Claim, as set out in
the Joint Notice. Any dispute between the Committee and the Representative
concerning the calculation of Fair Market Value or the number of shares
necessary to satisfy any Established Claim, or any other dispute regarding a
Joint Notice, shall be resolved between the Committee and the Representative in
accordance with the procedures specified in paragraph 2(d) above, and shall not
involve the Escrow Agent. Each transfer of shares in satisfaction of an
Established Claim shall be made by the Escrow Agent delivering to Tremisis one
or more stock certificates held in each Owner's account evidencing not less than
such Owner's pro rata portion of the aggregate number of shares specified in the
Joint Notice, together with assignments separate from certificate executed in
blank by such Owner and completed by the Escrow Agent in accordance with
instructions included in the Joint Notice. Upon receipt of the stock
certificates and assignments, Tremisis shall deliver to the Escrow Agent new
certificates representing the number of shares owned by each Owner after such
payment. The parties hereto (other than the Escrow Agent) agree that the
foregoing right to make payments of Established Claims in shares of Parent
Common Stock may be made notwithstanding any other agreements restricting or
limiting the ability of any Owner to sell any shares of Tremisis stock or
otherwise. The Committee and the Representative shall be required to exercise
utmost good faith in all matters relating to the preparation and delivery of
each Joint Notice. As used herein, "Fair Market Value" means the average
reported closing price for the Parent Common Stock for the ten trading days
ending on the last trading day prior to the day the Established Claim is paid.
(iii) Notwithstanding anything herein to the contrary, at such time as
an Indemnification Claim has become an Established Claim, the Representative
shall have the right to substitute for the Escrow Shares that otherwise would be
paid in satisfaction of such claim (the "Claim Shares"), cash in an amount equal
to the Fair Market Value of the Claim Shares ("Substituted Cash"). In such event
(i) the Joint Notice shall include a statement describing the substitution of
Substituted Cash for the Claim Shares, and (ii) substantially contemporaneously
with the delivery of such Joint Notice, the Representative shall cause currently
available funds to be delivered to the Escrow Agent in an amount equal to the
Substituted Cash. Upon receipt of such Joint Notice and Substituted Cash, the
Escrow Agent shall (y) in payment of the Established Claim described in the
Joint Notice, deliver the Substituted Cash to Tremisis in lieu of the Claim
Shares, and (z) cause the Claim Shares to be returned to the Representative.
3. On the first Business Day after June 30, 2007, upon receipt of a Joint
Notice, the Escrow Agent shall distribute and deliver to each Owner certificates
representing the shares of Parent Common Stock then in such Owner's account in
the Escrow Fund, unless at such time there are any Indemnity Claims with respect
to which Notices have been received but which have not been resolved pursuant to
Section 2 hereof or in respect of which the Escrow Agent has not been notified
of, and received a copy of, a final determination (after exhaustion of any
appeals) by a court of competent jurisdiction, as the case may be (in either
case, "Pending Claims"), and which, if resolved or finally determined in favor
of Tremisis, would result in a payment to Tremisis, in which case the Escrow
Agent shall retain, and the total amount of such distributions to such Owner
shall be reduced by, the "Pending Claims Reserve" (as hereafter defined). The
Committee shall certify to the Escrow Agent the Fair Market Value to be used in
calculating the Pending Claims Reserve and the number of shares of Parent Common
Stock to be retained therefor. Thereafter, if any Pending Claim becomes an
Established Claim, the Committee and the Representative shall deliver to the
Escrow Agent a Joint Notice directing the Escrow Agent to pay to Tremisis an
amount in respect thereof determined in accordance with paragraph 2(f) above,
and to deliver to each Owner shares of Parent Common Stock then in such owner's
account in the Escrow Fund having a Fair Market Value equal to the amount by
which the remaining portion of his account in the Escrow Fund exceeds the then
Pending Claims Reserve (determined as set forth below), all as specified in a
Joint Notice. If any Pending Claim is resolved against Tremisis, the Committee
and the Representative shall deliver to the Escrow Agent a Joint Notice
directing the Escrow Agent to pay to each Owner the amount by which the
remaining portion of his account in the Escrow Fund exceeds the then Pending
Claims Reserve. Upon resolution of all Pending Claims, the Committee and the
Representative shall deliver to the Escrow Agent a Joint Notice directing the
Escrow Agent shall pay to such Owner the remaining portion of his or her account
in the Escrow Fund.
"Pending Claims" shall automatically include the Great Plains Claim (as
defined in the Merger Agreement) if same has not been adjudicated, settled,
dismissed or otherwise resolved in its entirety with respect to RAM and its
subsidiaries and affiliates prior to June 30, 2007.
As used herein, the "Pending Claims Reserve" shall mean, at the time any
such determination is made, that number of shares of Parent Common Stock in the
Escrow Fund having a Fair Market Value equal to (i) the sum of the aggregate
dollar amounts claimed to be due with respect to all Pending Claims (as shown in
the Notices of such Claims), other than the Great Plains Claim, plus (ii) (a)
the aggregate dollar amount of the potential liability of RAM and its
subsidiaries and affiliates in connection with the Great Plains Claim, if such
potential liability is reasonably quantifiable as of June 30, 2007 or (b) if
such potential liability is not reasonably quantifiable, the lesser of (1) 50%
of the number of shares originally constituting the Escrow Fund and (2) the
number of shares contained in the Escrow Fund that are not otherwise subject to
the Pending Claims Reserve and would be otherwise releasable to the
Stockholders.
4. The Escrow Agent, the Committee and the Representative shall cooperate
in all respects with one another in the calculation of any amounts determined to
be payable to Tremisis and the Owners in accordance with this Agreement and in
implementing the procedures necessary to effect such payments.
5. (a) The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. It is understood that the Escrow Agent is not a
trustee or fiduciary and is acting hereunder merely in a ministerial capacity.
(b) 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.
(c) The Escrow Agent's sole responsibility upon receipt of any notice
requiring any payment to Tremisis pursuant to the terms of this Agreement or, if
such notice is disputed by the Committee or the Representative, the settlement
with respect to any such dispute, whether by virtue of joint resolution,
arbitration or determination of a court of competent jurisdiction, is to pay to
Tremisis the amount specified in such notice, and the Escrow Agent shall have no
duty to determine the validity, authenticity or enforceability of any
specification or certification made in such notice.
(d) The Escrow Agent shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and indemnification under
Section 5(g), below, for any action taken or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(e) 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 the Escrow Fund to a successor escrow agent appointed jointly by the
Committee and the Representative. 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 Fund with any court it reasonably deems
appropriate.
(f) In the event of a dispute between the parties as to the proper
disposition of the Escrow Fund, the Escrow Agent shall be entitled (but not
required) to deliver the Escrow Fund into the United States District Court for
the Southern District of New York and, upon giving notice to the Committee and
the Representative of such action, shall thereupon be relieved of all further
responsibility and liability.
(g) The Escrow Agent shall be indemnified and held harmless by Tremisis
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 Fund 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 Fund or it may deposit the Escrow Fund with the clerk of any
appropriate court and be relieved of any liability with respect thereto or it
may retain the Escrow Fund 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 Fund are to be disbursed and delivered.
(h) The Escrow Agent shall be entitled to reasonable compensation from
Tremisis for all services rendered by it hereunder. The Escrow Agent shall also
be entitled to reimbursement from Tremisis 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.
(i) From time to time on and after the date hereof, the Committee and the
Representative 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.
(j) 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. This Agreement expressly sets forth all the duties of the Escrow Agent
with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any agreement among the
parties hereto except this Agreement and shall have no duty to inquire into the
terms and conditions of any agreement made or entered into in connection with
this Agreement, including, without limitation, the Merger Agreement. 7. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives, shall be
governed by and construed in accordance with the law of Delaware applicable to
contracts made and to be performed therein except that issues relating to the
rights and obligations of the Escrow Agent shall be governed by and construed in
accordance with the law of New York applicable to contracts made and to be
performed therein. This Agreement cannot be changed or terminated except by a
writing signed by the Committee, the Representative and the Escrow Agent. 8. The
Committee and the Representative each hereby consents to the exclusive
jurisdiction of the Oklahoma state courts sitting in Oklahoma or Tulsa County
and federal courts sitting in Oklahoma with respect to any claim or controversy
arising out of this Agreement. Service of process in any action or proceeding
brought against the Committee or the Representative in respect of any such claim
or controversy may be made upon it by registered mail, postage prepaid, return
receipt requested, at the address specified in Section 9, with a copy delivered
by nationally recognized overnight carrier to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The Chrysler
Building, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, Esq. 9. All notices and other communications under this Agreement shall
be in writing and shall be deemed given if given by hand or delivered by
nationally recognized overnight carrier, or if given by telecopier and confirmed
by mail (registered or certified mail, postage prepaid, return receipt
requested), to the respective parties as follows:
A. If to the Committee, to it at c/o Tremisis
Energy Acquisition Corporation ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Telecopier No.:
▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
B. If to the Representative, to him at
▇▇▇▇▇ ▇. ▇▇▇
Meridian Tower, Suite 650
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
McAfee & ▇▇▇▇, A Professional Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Telecopier No.:
▇▇▇-▇▇▇-▇▇▇▇
C. If to the Escrow Agent, to it at:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: 212-509-5150
or to such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
10. (a) If this Agreement requires a party to deliver any notice or other
document, and such party refuses to do so, the matter shall be submitted to
arbitration pursuant to paragraph 3(d) of this Agreement.
(b) All notices delivered to the Escrow Agent shall refer to the provision
of this Agreement under which such notice is being delivered and, if applicable,
shall clearly specify the aggregate dollar amount due and payable to Tremisis.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original instrument and all of which together
shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first above written.
TREMISIS ENERGY ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board
THE REPRESENTATIVE
/s/ ▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇
ESCROW AGENT
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman