SHARE ESCROW AGREEMENT dated as of 24 April 2006 (the “Agreement”), by and among:
Exhibit 4.4
SHARE ESCROW AGREEMENT dated as of 24 April 2006 (the “Agreement”), by and among:
(1) Cross Shore Acquisition Corporation, a company organised under the
laws of the State of Delaware with its registered office at Corporation
Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Company”);
(2) ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, CSA I,
LLC, CSA II, LLC, CSA III, LLC and Sunrise Securities Corp. (“Sunrise”)
(each a “Founding Shareholder” and together the “Founding Shareholders”);
and
(3) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Cl) Limited, a company Incorporated in and
registered under the laws of Guernsey, with its registered office at 2nd
Floor, No. 1 Le Truchot, ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the “Escrow
Agent”).
WHEREAS, the Founding Shareholders have agreed to subscribe (directly
or indirectly) for, and the Company has agreed to issue to such Founding
Shareholders, 4,666,667 shares of common stock, par value $0,0001 per share
(the “Shares”), such Shares subscribed for being the “Founding Shares”;
WHEREAS, the Founding Shareholders have agreed as a condition of their
subscription for the Founding Shares to deposit such Founding Shares as are
set forth opposite their respective names in Exhibit A attached hereto
(collectively the “Escrow Shares”), in escrow as hereinafter provided;
WHEREAS, the Company and the Founding Shareholders desire that the
Escrow Agent hold 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 Founding
Shareholders 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 Admission Date, each of
the Founding Shareholders shall deliver to the Escrow Agent certificates
representing its respective Escrow Shares, to be held and disbursed subject
to the terms and conditions of this Agreement. For the purposes of this
Agreement, “Admission Date” means the date on which the Shares and Warrants
(as such term is used in the offering circular of the Company dated on or
about the date hereof (the “Offering Circular”)) of the Company are first
admitted to trading on AIM (a market operated by the London Stock Exchange
plc). For the avoidance of doubt, title to the Escrow Shares shall remain
with the Founding Shareholders.
3. Disbursement of the Escrow Shares. The Escrow Agent shall hold the
Escrow Shares until the third anniversary of the Admission Date (the
“Escrow Period”). On the expiry of the Escrow Period, the Escrow Agent
shall, upon written instructions from the Company, disburse each of the
Founding Shareholder’s Escrow Shares to such Founding Shareholder;
provided, however, that if the Escrow Agent is notified in writing by the
Company that the Company:
| (a) | is being dissolved or liquidated at any time during the Escrow Period, then the Escrow Shares shall be forfeited and the Escrow Agent shall return the certificates representing the Escrow Shares to the Company for cancellation of the Escrow Shares; | ||
| (b) | having consummated a Qualified Business Combination (as such term is used in the Offering Circular), intends to consummate a liquidation, merger, amalgamation, share exchange or other similar transaction which results in (or would result in) all of the shareholders of such resulting entity having the right to exchange their Shares for cash, securities or other property, then the Escrow Agent will, upon receipt of a certificate executed by the chairman or chief executive officer of the Company, in a form reasonably acceptable to the Escrow Agent, stating that such transaction is being consummated, release the Escrow Shares to the Founding Shareholders when the consummation of the transaction becomes unconditional in all respects (save for consummation of such exchange) so that they can similarly participate; or |
| (c) | is repurchasing any of the Escrow Shares in accordance with its certificate of incorporation or otherwise for cancellation, then the Escrow Agent will, upon receipt of a certificate stating that such repurchase is being undertaken, executed by the chairman or chief executive officer of the Company and in a form reasonably acceptable to the Escrow Agent (the “Repurchase Notice”), release such number of Escrow Shares as are specified in the Repurchase Notice to the Company for repurchase and cancellation. |
The Escrow Agent shall have no further duties hereunder in respect of
any Escrow Shares which have been disbursed or destroyed in accordance with
this Section 3 and shall have no further duties under this Agreement once
all Escrow Shares have been disbursed or destroyed in accordance with this
Section 3.
4. Rights of Founding Shareholders in Escrow Shares.
4.1 Voting Rights as a Shareholder. Subject to the terms of the
Insider Letters (as defined in Section 4.4 hereof) and except as herein
provided, the Founding Shareholders shall retain all of their rights as
holders of Shares in the Company during the Escrow Period, including,
without limitation, the right to vote in respect of such Shares.
4.2 Dividends and Other Distributions in Respect of the Escrow Shares.
During the Escrow Period, all dividends or other distributions payable in
cash with respect to the Escrow Shares shall be paid to the Founding
Shareholders, but all dividends payable in shares 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 a Founding Shareholder’s immediate
family or to a trust, the beneficiary of which is a Founding Shareholder or
a member of a Founding Shareholder’s immediate family, (ii) by virtue of
the laws of descent and distribution upon death of any Founding
Shareholder, 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
Founding Shareholder transferring the Escrow Shares. During the Escrow
Period, the Founding Shareholders shall not pledge or grant a security
interest in the Escrow Shares or grant a security interest in their rights
under this Agreement.
4.4 Insider Letters. Each of the Founding Shareholders has executed a
letter agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited (“▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇”), the
Company and, save in the case of Sunrise’s Insider Letter, Sunrise, dated
as indicated on Exhibit A hereto (“Insider Letter”), in connection with the
rights and obligations of such Founding Shareholder 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 reasonably
believed by the Escrow Agent to be genuine after appropriate due diligence
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
in 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 Founding Shareholders 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,
fraud, bad faith, willful default 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 shall retain the Escrow
Shares pending receipt of instructions from each of the Company and the
Founding Shareholders or receipt of an order of a court having jurisdiction
over any 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 a fee of
$4,000 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 Founding Shareholders 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.
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 Company and a majority of the Founding
Shareholders, 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.
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 England
and Wales and the parties hereto agree to submit all disputes hereunder to
the non-exclusive jurisdiction of the courts of England and Wales. Any
action, proceeding or claim to be served upon the Company 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 6.6 hereof. Such mailing shall be deemed personal service and shall
be legal and binding upon the Company in any action, proceeding or claim.
6.2 Third Party Beneficiaries. Each of the Company and the Founding
Shareholders hereby acknowledge that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is a third party
beneficiary of this Agreement, and that this Agreement may not be modified
or changed without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Except as
explicitly provided herein, the parties do not intend that any person who
is not a signatory to this Agreement (a “Third Party”) shall acquire any
right under this Agreement (whether or not pursuant to the Contracts
(Rights of Third Parties) Act 1999) nor that the consent of or any notice
to any Third Party shall be required for the variation, rescission or
termination of this Agreement.
6.3 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 the party to be charged.
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 mall, 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:
Cross Shore Acquisition Corporation
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
If to a Founding Shareholder, to the address set forth in
Exhibit A, provided that in the case of ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇, service on CSA I, LLC, CSA II, LLC or CSA III, LLC shall
constitute notice on each of them in respect of their holdings
in each of those companies, respectively.
and if to the Escrow Agent, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Cl) Limited
2nd Floor
▇▇. ▇ ▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
2nd Floor
▇▇. ▇ ▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
A copy of any notice sent hereunder shall be sent to (but shall not constitute notice):
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and:
Weil, Gotshal & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
and:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (London) LLP.
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇
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 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 by
the Qualified Business Combination Deadline (such terms as defined in the
Offering Circular).
WITNESS the execution of this Agreement as of the date first above written.
| CROSS SHORE ACQUISITION CORPORATION | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| Name: | ||||||
| Title: | ||||||
| FOUNDING SHAREHOLDERS: | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| ▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| CSA I, LLC | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| CSA II, LLC | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| CSA III, LLC | ||||||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| SUNRISE SECURITIES CORP. | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Cl) LIMITED | ||||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Title: DIRECTOR, CORPORATE FINANCE | ||||||