FOUNDER WARRANT ESCROW AGREEMENT
FOUNDER
WARRANT 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 (the “Founder”)
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
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 Founder has
agreed to purchase, in a private placement that will occur immediately prior
to
the closing of the sale of the Units (the “Offering”),
1,525,000 warrants (collectively, the “Founder
Warrants”)
at a
purchase price of $1.00 per Founder Warrant.
WHEREAS,
the Founder has agreed, as a condition of the sale of the Units to SunTrust,
to
deposit the Founder Warrants in escrow as hereinafter provided.
WHEREAS,
the Company and the Founder desire that the Escrow Agent accept the Founder
Warrants, 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 Founder 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 Founder Warrants.
On or
before the Effective Date, Founder shall deliver to the Escrow Agent a
certificate representing its Founder Warrants, to be held and disbursed subject
to the terms and conditions of this Agreement. Founder acknowledges that
the
certificate representing its Founder Warrants bears a legend reflecting the
deposit of such Founder Warrants under this Agreement.
3. Disbursement
of the Founder Warrants.
The
Escrow Agent shall hold the Founder Warrants until the later of (a) one
year
after the date of the Prospectus and
(b) 60
days after the consummation of the Company’s initial business
combination
(as
described in the Registration Statement) (the “Escrow
Period”),
at
which time it shall, upon joint written instructions from the Founder and
the
Company, disburse the Founder Warrants (and any applicable instrument of
transfer) to the Founder or its Permitted Transferees; 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 certificate representing the Founder
Warrants. The Escrow Agent shall have no further duties hereunder after the
disbursement or destruction of the Founder Warrants in accordance with this
Section 3.
4.
Restrictions on Transfer of the Founder Warrants. During the Escrow
Period, no sale, transfer or other disposition may be made of any or all
of the
Founder Warrants except (i) to persons or entities controlling, controlled
by,
or under common control with the Founder, or to any stockholder, member,
partner
or limited partner of any such person or (ii) to family members and trusts
of
such permitted assignees for estate planning purposes or, upon the death
of any
such person, to an estate or beneficiaries of such permitted assignees
(the
"Permitted Transferees"); in each case, such transferee will be subject
to the
same transfer restrictions as the Founder until after the Company completes
its
initial business combination; provided, however, that such transfers may
be
implemented only upon the respective Permitted Transferee’s written agreement to
be bound by the terms and conditions of this Agreement and the Insider
Letter
executed by the Founder, the Company and SunTrust. During the Escrow Period,
neither the Founder nor any Permitted Transferee shall pledge or grant
any
security interest in the Founder Warrants or grant any security interest
in its
rights under this Agreement without the prior written consent 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 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 that, in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Founder Warrants 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 Founder Warrants or it may deposit the Founder
Warrants with the clerk of any appropriate court or it may retain the Founder
Warrants 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 Founder Warrants 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.
2
5.4 Further
Assurances.
From
time to time on and after the date hereof, the Company and the Founder 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 Founder Warrants
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 Founder Warrants 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 subject to all the
terms of this Agreement and the delivery, by the Escrow Agent, of the Founder
Warrants 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
Founder
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
Founder 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 Founder 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
Founder and the Escrow Agent in any action, proceeding or
claim.
6.3 Third
Party Beneficiaries.
The
Founder 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. This
Agreement and any amendment may be executed in several original or facsimile
counterparts, each one of which shall constitute an original, and together
shall
constitute but one instrument.
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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.
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:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Co-Chief Executive Officer
If
to the
Founder, to:
Secure
America Acquisition Holdings, LLC
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇, Chairman
A
copy of
any notice sent hereunder shall be sent to:
SunTrust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇▇▇▇▇
and:
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇, PC
The
Chrysler Building
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇, Esq.
4
and:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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.
6.8 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 left intentionally blank. Signature page(s) to follow}
5
IN
WITNESS WHEREOF, the undersigned have executed this Founder Warrant Escrow
Agreement as of the date first written above.
| SECURE AMERICA ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Co-Chief Executive Officer and Chairman
|
||
| SECURE AMERICA ACQUISITION HOLDINGS, LLC | ||
| |
|
|
| By: | ||
|
Name:
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
|
||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| |
|
|
| By: | ||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Chairman
|
||
SCHEDULE
A
ESCROW
AGENT FEES