Exhibit 10.11
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of September __, 2007 ("AGREEMENT"), by and
among SP ACQUISITION HOLDINGS, INC., a Delaware corporation ("COMPANY"), SP ACQ
LLC, a Delaware Limited Liability Company (the "INITIAL STOCKHOLDER") and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation ("ESCROW
AGENT").
WHEREAS, the Company has entered into an Underwriting Agreement, dated
__________, 2007, with UBS Securities LLC ("UBS") and Ladenburg ▇▇▇▇▇▇▇▇ & Co.,
Inc. ("LADENBURG"), acting as representatives of the several underwriters
(collectively, the "UNDERWRITERS"), pursuant to which, the Underwriters have
agreed to purchase 40,000,000 units ("UNITS") of the Company. Each Unit consists
of one share of the Company's common stock, par value $.001 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
comprising part of the Company's Registration Statement on Form S-1 (File No.
333-142696) under the Securities Act of 1933, as amended ("REGISTRATION
Statement"), declared effective on ________, 2007 ("EFFECTIVE DATE");
WHEREAS, solely for the purpose of covering over-allotments, the Company
has granted to the Underwriters the option to purchase from the Company up to an
additional 6,000,000 Units (the "Overallotment Option");
WHEREAS, the Initial Stockholder, Steel Partners II, L.P., ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and S. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(collectively, "FOUNDING STOCKHOLDERS") originally collectively held 7,500,000
Units;
WHEREAS, it is the intention of the Company that the Founding Stockholders
should hold 20% of the outstanding Units after the exercise of the
over-allotment option;
WHEREAS, the Company declared and paid a dividend of 0.15 Units per Unit
outstanding, which resulted in the issuance of an additional 1,125,000 Units;
WHEREAS, the Company subsequently declared and paid an additional dividend
of one-third of a Unit per Unit outstanding, which resulted in the issuance of
an additional 2,875,000 Units;
WHEREAS, to ensure that the Founding Stockholders will hold 20% of the
outstanding Units after the exercise of the over-allotment option, 1,500,000
Units issued as a result of the dividends shall be placed in escrow (the "ESCROW
UNITS");
WHEREAS, the Founding Stockholders and the Company have entered into an
Adjustment Agreement, which provides among other things, that the Founding
Stockholders other than the Initial Stockholder have assigned all of the Escrow
Units to the Initial Stockholder;
WHEREAS, the Underwriters have required as a condition to the purchase of
the Units that the Initial Stockholder deposit the Escrow Units as well as
certificates representing the shares of Common Stock (the "ESCROW COMMON STOCK")
and warrants (the "ESCROW WARRANTS" and collectively with the Escrow Units and
Escrow Common Stock, the "ESCROW SECURITIES") underlying the Escrow Units in
escrow as hereinafter provided; and
WHEREAS, the Company and the Initial Stockholder 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 Stockholder
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 UNITS. On or before the Effective Date, the Initial
Stockholder shall have delivered or caused to be delivered to the Escrow Agent
certificates representing the Escrow Securities to be held and disbursed subject
to the terms and conditions of this Agreement. The Initial Stockholder
acknowledges that the certificates representing the Escrow Securities are
legended to reflect the deposit of such Escrow Securities under this Agreement.
3. DISBURSEMENT OF THE ESCROW UNITS. The Escrow Agent shall hold the
Escrow Securities until the earlier to occur of the expiration of the
Underwriters' over-allotment option, the exercise in full of the Underwriters'
over-allotment option, or the announcement by the Underwriters of their
intention not to exercise all or any remaining portion of the over-allotment
option (the "ESCROW PERIOD"), on which date it shall, upon written instructions
from the Initial Stockholder and the Company, release the Escrow Securities (and
any applicable stock power) to the Initial Stockholder in accordance with the
next sentence. The number of Escrow Units that shall be released to the Initial
Stockholder shall be an amount such that the Founding Stockholders and their
permitted transferees shall collectively own 20% of the Units issued and
outstanding following either the exercise or termination of the over-allotment
option. The remaining Escrow Securities not released to the Initial Stockholder
shall be forfeited back to the Company and the Initial Stockholder shall have no
right, title or interest in any such securities. The Escrow Agent shall have no
further duties hereunder after the disbursement or destruction of the Escrow
Securities in accordance with this SECTION 3.
4. Rights of Initial Stockholder in Escrow Securities.
4.1. DIVIDENDS AND OTHER DISTRIBUTIONS IN RESPECT OF THE ESCROW
SHARES. 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 Securities" shall be deemed
to include the Non-Cash Dividends distributed thereon, if any.
4.2. ADJUSTMENT AGREEMENT. The Initial Stockholder acknowledges that
the Escrow Securities will be subject to the same restrictions as the Founder's
Securities (as defined in the Founder's Securities Purchase Agreement, dated
March 22, 2007, between the Company and SP Acq LLC) in accordance with the
Adjustment Agreement, dated August 8, 2007, by and between the Company and SP
Acq LLC.
2
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) that 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 that 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 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 Stockholder 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
3
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 Securities 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 Securities 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.
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
(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).
The Company 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. The Company hereby waives
any objection to such exclusive jurisdiction or that such courts represent an
inconvenience forum. Any such process or summons 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. The Initial Stockholder 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 UBS and Ladenburg, as representatives of the Underwriters.
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 each party hereto. It 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 thereof.
4
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 that 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:
SP Acquisition Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Attn: __________]
If to the Initial Stockholder, to:
SP Acq LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Attn: __________]
If to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Attn: Chairman]
A copy of any notice sent hereunder shall be sent to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
and:
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: __________________________]
5
and:
Ladenburg ▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Frome ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
The parties may change the persons and addresses that 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.
[SIGNATURE PAGES FOLLOW]
6
WITNESS the execution of this Agreement as of the date first above
written.
SP ACQUISITION HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
SP ACQ LLC
By:
--------------------------------------
Name:
Title:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By:
--------------------------------------
Name:
Title:
A-1
