EXHIBIT 4.6
SECURITIES ESCROW AGREEMENT
SECURITIES ESCROW AGREEMENT, dated as of ______________, 2006 (the
"AGREEMENT"), by and among TAILWIND FINANCIAL INC., a Delaware corporation (the
"COMPANY"), each of the holders of securities of the Company set forth on
EXHIBIT A, annexed hereto (collectively the "INITIAL HOLDERS") and AMERICAN
STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "ESCROW AGENT").
WHEREAS, the Company has entered into an Underwriting Agreement, dated [-],
2006 (the "UNDERWRITING Agreement"), with Deutsche Bank Securities Inc.
("DEUTSCHE BANK") acting as representative of the several underwriters
(collectively, the "UNDERWRITERS"), pursuant to which, among other matters, the
Underwriters have agreed to purchase 12,500,000 units (the "UNITS") of the
Company. Each Unit consists of one share of the Company's common stock, par
value $.01 per share (the "COMMON STOCK"), and one warrant (the "WARRANT")
exercisable to purchase one share of Common Stock, all as more fully described
in the Company's final Prospectus, dated [-], 2006 comprising part of the
Company's Registration Statement on Form S-1 (File No. 333-135790) under the
Securities Act of 1933, as amended (the "REGISTRATION STATEMENT"), declared
effective on [-], 2006 (the "EFFECTIVE DATE");
WHEREAS, certain of the Initial Holders (the "COMMON HOLDERS") have agreed
as a condition of the Underwriters' purchase of the Units to deposit their
shares of Common Stock of the Company, as set forth opposite their respective
names on EXHIBIT A attached hereto as well as any shares of Common Stock issued
or issuable upon exercise of the Escrow Warrants (collectively "ESCROW SHARES"),
in escrow as hereinafter provided;
WHEREAS, certain of the Initial Holders (the "WARRANT HOLDERS") have agreed
as a condition of the Underwriters' purchase of the Units to purchase 4,000,000
Warrants for $1.00 per Warrant (the "ESCROW WARRANTS" and collectively with the
Escrow Shares, the "ESCROW SECURITIES")) immediately prior to and subject to the
date (the "CLOSING DATE") of the closing (the "CLOSING") of the Company's
initial public offering (the "OFFERING") and to deposit such Escrow Warrants as
set forth opposite their respective names on EXHIBIT A in escrow as hereinafter
provided; and
WHEREAS, the Company and the Initial Holders desire that the Escrow Agent
accept the Escrow Securities, in escrow, to be held and disbursed as hereinafter
provided.
IT IS AGREED:
1. APPOINTMENT OF ESCROW AGENT. The Company and the Initial Holders 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 SECURITIES.
2.1. ESCROW SHARES. On or before the Effective Date, each of the Common
Holders shall deliver to the Escrow Agent certificates representing his or its
respective Escrow Shares, to be held and disbursed subject to the terms and
conditions of this Agreement. Each Common Holder acknowledges that the
certificate representing his Escrow Shares is legended to reflect the deposit of
such Escrow Shares under this Agreement.
2.2. ESCROW WARRANTS. Promptly following the purchase of the Escrow
Warrants, each Warrant Holder shall deliver to the Escrow Agent the Escrow
Warrants to be held and disbursed subject to the terms and conditions of this
Agreement. Each such Warrant Holder acknowledges that the Escrow Warrants are
legended to reflect the deposit of the Escrow Warrants under this Agreement.
3. DISBURSEMENT OF THE ESCROW SECURITIES.
3.1. ESCROW SHARES. The Escrow Agent shall hold the Escrow Shares until
the first anniversary of the consummation of a "BUSINESS COMBINATION" (as
defined in the Registration Statement) (such period, the "ESCROW SHARE PERIOD").
On such first anniversary, the Escrow Agent shall, upon written instructions
from each Common Holder, disburse each Common Holder's Escrow Shares to such
Common Holder; provided, however, that in the event that the Closing does not
occur, then the Escrow Agent shall promptly release the Escrow Shares to the
Common Holders; provided further, however, that if a Common Holder does not
provide written instructions within ninety days after the consummation of a
Business Combination, then the Escrow Agent shall deliver such Common Holder's
Escrow Shares to the care of the Company; provided further, however, that if the
Escrow Agent is notified by the Company pursuant to Section 6.6 hereof that the
Company has been liquidated at any time during the Escrow Share 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 and the Company or the surviving entity of such Business
Combination subsequently consummates a liquidation, merger, stock exchange or
other similar transaction which results in any of the security holders of the
Company or such entity having the right to exchange their securities for cash,
securities or other property, then the Escrow Agent will, upon receipt of a
certificate, executed by the Chief Executive Officer or Chief Financial Officer
of the Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated, release the Escrow Shares to the Common
Holders immediately prior and subject to consummation of the transaction so that
they can similarly participate. The Escrow Agent shall have no further duties
hereunder with respect to the Escrow Shares after the disbursement or
destruction of the Escrow Shares in accordance with this Section 3.1.
3.2. ESCROW WARRANTS. The Escrow Agent shall hold the Escrow Warrants
and the shares of Common Stock issued upon exercise of the Escrow Warrants (if
any) until the date which is ninety (90) days following the consummation of a
Business Combination (such period, the "ESCROW WARRANT PERIOD"). On such 90th
day, the Escrow Agent shall, upon written instructions from each Warrant Holder,
disburse each Warrant Holder's Escrow Warrants (or shares of Common Stock issued
upon exercise thereof, if any) to such Warrant Holder; provided, however, that
if the Escrow Agent is notified by the Company pursuant to Section 6.6 hereof
that the Company has been liquidated at any time during the Escrow Warrant
Period, then the Escrow
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Agent shall promptly destroy the Escrow Warrants (and the certificates
representing the shares of Common Stock issued upon exercise thereof, if any);
provided further, however, that if a Warrant Holder does not provide written
instructions, then the Escrow Agent shall deliver such Warrant Holder's Escrow
Warrants to the care of the Company; provided further, however, that if, after
the Company consummates a Business Combination and the Company or the surviving
entity of such Business Combination subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in any of the
security holders of the Company or such entity having the rights to exchange
their securities for cash, securities or other property, then the Escrow Agent
will, upon receipt of a certificate, executed by the Chief Executive Officer or
Chief Financial Officer of the Company, in form reasonably acceptable to the
Escrow Agent, that such transaction is then being consummated, release the
Escrow Warrants (and the shares of Common Stock issued upon exercise thereof, if
any) to the Warrant Holders immediately prior and subject to consummation of the
transaction so that they can similarly participate. The Escrow Agent shall have
no further duties hereunder with respect to the Escrow Warrants or shares of
Common Stock issued upon exercise thereof, if any, after the disbursement or
destruction of the Escrow Warrants and/or such shares in accordance with this
Section 3.2.
4. RIGHTS OF INITIAL HOLDERS IN ESCROW SHARES AND ESCROW WARRANTS.
4.1. RIGHTS AS A SECURITY HOLDER. Subject to the terms of their
respective Insider Letters as described in Section 4.4 hereof and except as
herein provided, (i) each Common Holder shall retain all of its rights as a
stockholder of the Company during the Escrow Share Period, including without
limitation, the right to vote Common Stock and (ii) each Warrant Holder shall
retain its rights under the Warrant, but shall have no rights as a stockholder
of the Company prior to exercise of the Warrant.
4.2. DIVIDENDS AND OTHER DISTRIBUTIONS IN RESPECT OF THE ESCROW SHARES.
During the Escrow Share Period with respect to the Escrow Shares, all dividends
payable in cash with respect to the Escrow Shares shall be paid to the Common
Holders, but all dividends payable in stock or other non-cash property (the
"NON-CASH DIVIDENDS") shall be delivered to the Escrow Agent to hold in
accordance with the terms hereof. As used herein, the terms "ESCROW SHARES"
shall be deemed to include the Non-Cash Dividends distributed thereon, if any.
4.3. RESTRICTIONS ON TRANSFER. During the Escrow Share Period, no sale,
transfer or other disposition (a "TRANSFER") may be made of any or all of the
Escrow Shares, and during the Escrow Warrant Period, no Transfer may be made of
any or all of the Escrow Warrants, in each case by an Initial Holder except (i)
by gift to a member of the Initial Holder's immediate family for estate planning
purposes or to a trust, the beneficiary of which is the Initial Holder or a
member of the Initial Holder's immediate family, (ii) by virtue of the laws of
descent and distribution upon death of the Initial Holder, or (iii) pursuant to
a qualified domestic relations order; PROVIDED, HOWEVER, that such permitted
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 Holder transferring the Escrow Securities.
During: (A) the Escrow Share Period, no Common Holder shall pledge or grant a
security interest in his or its Escrow Shares or grant a security interest in
his or its rights under this Agreement; and (B) the Escrow Warrant Period, no
Warrant Holder shall pledge or grant a
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security interest in his or its Escrow Warrants or grant a security interest in
his or its rights under this Agreement.
4.4. INSIDER LETTERS. Each of the Initial Holders has executed a letter
agreement with the Company, dated as indicated on EXHIBIT A hereto, and which is
filed as an exhibit to the Registration Statement (the "INSIDER LETTER"),
respecting the rights and obligations of such Initial Holders 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 Securities 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 Securities or it may deposit
the Escrow Securities with the clerk of any appropriate court or it may retain
the Escrow Securities 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 Securities are to be disbursed and
delivered. The provisions of Sections 5.2 and 5.7 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 compensation
from the Company in accordance with SCHEDULE I hereto for all services rendered
by it hereunder.
5.4. FURTHER ASSURANCES. From time to time on and after the date hereof,
the Company and the Initial Holders 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
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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 at
such time that the Escrow Agent shall turn over to a successor escrow agent
appointed by the Company, the Escrow Securities held hereunder. If no new escrow
agent is so appointed within the sixty (60) day period following the giving of
such notice of resignation, the Escrow Agent may submit an application to
deposit the Escrow Securities with the United States District Court for the
Southern District of New York, provided the Escrow Agent provides notice of such
deposit to the Company and the Initial Holders in accordance with Section 6.5
hereof.
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. 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 (as defined in that certain Investment Management Trust Agreement, dated
as of the date hereof, by and between the Company and the Escrow Agent as
trustee thereunder), 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 AND CONSENT TO JURISDICTION. 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. The parties hereto agree 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
submit to such jurisdiction, which jurisdiction shall be exclusive. The parties
hereby waive any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum.
6.2. THIRD PARTY BENEFICIARIES. Each of the Initial Holders 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 Deutsche Bank.
6.3. ENTIRE AGREEMENT. This Agreement and the Insider Letters and
Warrants as referenced herein contain the entire agreement of the parties hereto
with respect to the subject
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matter hereof and, except as expressly provided herein, may not be changed or
modified except by an instrument in writing signed by all parties to this
Agreement. The Agreement 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 hereof.
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 permitted 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, if mailed, two days after the date of mailing, or if sent
by national courier service, one business day after being sent, in each case as
follows:
If to the Company, to:
Tailwind Financial Inc.
BCE Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Stockholder, to his address set forth in EXHIBIT A.
If to the Escrow Agent, to:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notice sent hereunder shall be sent to each of:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn: Syndicate Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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 Registration Statement.
[Remainder of Page Left Blank Intentionally]
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IN WITNESS WHEREOF, the parties have duly executed this Security Escrow
Agreement as of the date first written above.
TAILWIND FINANCIAL INC.
By:
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
INITIAL HOLDERS:
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
ESCROW AGENT:
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
Number of
Shares of Stock Number Warrant Date of
Name and Address of Common Certificate of Certificate Insider
Initial Holder Stock Number Warrants Number Letter
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SCHEDULE I - ESCROW AGENT FEES FOR ESCROW SERVICES