Unassociated Document


    


    ESCROW
AGREEMENT

     

    ESCROW
AGREEMENT
(“Agreement”) dated March 13, 2009 by
and among TREMISIS
ENERGY ACQUISITION CORPORATION II, a Delaware corporation
(“Tremisis”), LAWRENCE S. COBEN, RONALD D. ORMAND,
JON SCHOTZ, CHARLES A. NORRIS, STEPHEN N. CASATI, BILL GOLDSTEIN, OLYMPUS
CAPITAL INVESTMENT, LLC, JERRY DOREN, OWEN COLEMAN, BILL ARMSTRONG, TREVOR
WILSON, BRIAN MCINERNEY, RICHARD KASSAR, DAVID LEVINE, JIM LAND, DAVID A.
PREISER, GARY EVANS AND JONATHAN JACOBS (each a “Stockholder” and collectively, the
“Stockholders”),  SOFTFORUM CO., LTD. AND SANG-CHUL
KIM (each an
“Investor” and collectively, the
“Investors”) and GRAUBARD
MILLER, as
escrow agent (the “Escrow
Agent”).

     

    Tremisis,
the Stockholders and the Investors are parties to an Agreement dated as of March
13, 2009 (the “Put/Call Agreement”)
pursuant to which the Stockholders will have the option to sell to the Investors
and the Investors will have the option to purchase from the Stockholders
2,650,000 warrants to purchase shares of common stock, par value $0.0001 per
share (the “Common
Stock”), of Tremisis (the “Warrants”) upon the
earlier of (i) Tremisis’ consummation of a Business Combination (defined in the
Put/Call Agreement), (ii) Tremisis’ liquidation of its trust account and (iii)
December 31, 2009, all upon the terms and subject to the conditions set forth in
the Put/Call Agreement.  Capitalized terms used herein that are not
otherwise defined herein shall have the meanings ascribed to them in the
Put/Call Agreement.

     

    Pursuant
to the Put/Call Agreement, (i) the purchase price to be paid by the Investors to
the Stockholders in exchange for the Warrants and (ii) the Warrants to be
purchased by the Investors, together with duly executed warrant powers, are to
be held in escrow subject to the terms of this Agreement.

     

    The
parties agree as follows:

     

    1.           (a)           Concurrently
with the execution hereof, (i) the Stockholders are delivering to the Escrow
Agent certificates representing the Warrants issued in the name of each
Stockholder, together with duly executed warrant powers to enable the transfer
of such Stockholders’ Warrants to the extent required pursuant to the terms
hereof and (ii) the Investors are delivering to Escrow Agent the Purchase Price
(together, the “Escrow
Fund”), all of which shall be held in escrow pursuant to the terms of
this Agreement.

     

    (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 Warrants,
warrant powers and Purchase Price in the Escrow Fund in accordance with this
Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)           During
the Escrow Period, all interest earned on the Purchase Price held in the Escrow
Fund shall be delivered to the Escrow Agent to hold as part of the Escrow Fund
in accordance with the terms hereof.

     

    (d)           During
the Escrow Period, no sale, transfer or other disposition may be made of any or
all of the Warrants except (i) to a Stockholder’s members or shareholders upon
its liquidation, (ii) by bona fide gift to a member of a Stockholder’s immediate
family or to a trust, the beneficiary of which is a Stockholder or a member of a
Stockholder’s immediate family, (iii) by virtue of the laws of descent and
distribution upon death of any Stockholder or (iv) pursuant to a qualified
domestic relations order.  In connection with and as a condition to
each permitted transfer, the transferee shall deliver to the Escrow Agent an
assignment form executed by the transferring Stockholder, or where applicable,
an order of a court of competent jurisdiction or death certificate, evidencing the transfer of
Warrants to the transferee, together with a warrant power and an agreement to be
bound by this Agreement executed by the transferee.  Upon receipt of
such documents, the Escrow Agent shall deliver to Tremisis’ warrant agent the
original warrant certificate out of which the assigned Warrants are to be
transferred, together with the executed assignment forms executed by the
transferring Stockholder, or a copy of the applicable court order or death
certificate, and shall request that Tremisis’ warrant agent issue new
certificates representing (A) the number of Warrants, if any, that continue to
be owned by the transferring Stockholder, and (B) the number of Warrants owned
by the transferee as the result of such transfer.  Tremisis, the
transferring Stockholder and the 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.  After any Warrant is
transferred pursuant to this paragraph, such Warrant so transferred will
continue to be held by the Escrow Agent in accordance with the terms of this
Agreement.  During the Escrow Period, no Owner (defined below) shall
pledge or grant a security interest in such Owner’s Warrants included in the
Escrow Fund or grant a security interest in such Owner’s rights thereto under
this Agreement.  The Stockholders and all transferees are herein
referred to collectively as the “Owners.”

     

    2.           (a)           Upon
receipt by the Escrow Agent after the Option Trigger of either (i) notice of
exercise of a Call Option from the Investors or (ii) notice of exercise of a Put
Option from the Stockholders without any notice from the Investors stating that
the Stockholders have breached the representations and warranties contained in
Section 4.6 of the Put/Call Agreement (a “Breach Notice”), then
within two business days of such receipt, the Escrow Agent shall deliver (x) the
Purchase Price, plus the interest earned thereon, to the Stockholders and (y)
the Warrants and warrant powers to the Investors.

     

    (b)           Upon
receipt by the Escrow Agent of a Breach Notice, countersigned by the
Stockholders, the Escrow Agent shall deliver (i) the Purchase Price, plus
interest earned thereon, to the Investors and (ii) the Warrants and warrant
powers to the Stockholders.

     

    (c)           Upon
receipt by the Escrow Agent after the Option Trigger of either (i) notice of
exercise of a Put Option from the Stockholders and a subsequent Breach Notice or
(ii) a Breach Notice not countersigned by the Stockholders, then a dispute shall
be deemed to exist, which dispute shall be governed by paragraph (d)
below.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (d)           If
there is a dispute between the Stockholders and Investors in connection with
paragraph (c) of this Section 2, the dispute shall be submitted (and either
party may submit such dispute) for arbitration before a single arbitrator in New
York, New York, in accordance with the commercial arbitration rules of the
American Arbitration Association then in effect.  The Stockholders and
Investors 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 Stockholders or Investors, upon written notice to
the other, may apply for appointment of such single arbitrator by the American
Arbitration Association in accordance with its rules.  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 Stockholders or
Investors 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 court having jurisdiction and may be enforced in any such court. If the
arbitrator shall fail to render his decision or award within such 90-day period,
either the Stockholders or Investors may apply to any New York state court
sitting in New York County, New York, or any federal court sitting in such
county 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.  Each of the Stockholders and Investors consents to
the exclusive jurisdiction of the New York state courts sitting in New York
County or any federal court having jurisdiction and sitting in such county 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.

     

    3.           The
Escrow Agent, Tremisis, the Stockholders and the Investors shall cooperate in
all respects with one another in implementing the procedures necessary to effect
the release of the Warrants and Purchase Price in accordance with this
Agreement.

     

    4.           (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.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (c)           The
Escrow Agent’s sole responsibility upon receipt of any notice pursuant to the
terms of this Agreement is to release the Warrants and Purchase Price that is
the subject of 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 4(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
Stockholders and the Investors.  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 to any court in the State of New York or the United States
District Court for the Southern District of New York and, upon giving notice to
Tremisis, the Stockholders and the Investors of such action, shall thereupon be
relieved of all further responsibility and liability.

     

    (g)           The
Escrow Agent shall be indemnified and held harmless jointly and severally by
Tremisis, the Stockholders and the Investors 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 in question 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 Warrants and Purchase Price in the Escrow Fund
are to be disbursed and delivered.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (h)           The
Escrow Agent shall be entitled to reimbursement from Tremisis for all reasonable
documented expenses paid or incurred by it in the administration of its duties
hereunder including, but not limited to, any taxes or other governmental
charges.  Notwithstanding the foregoing, the Escrow Agent shall not be
entitled to any fees for its own services rendered under the Escrow
Agreement.

     

    (i)           From
time to time on and after the date hereof, Tremisis, the Stockholders and the
Investors 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.

     

    5.           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 Put/Call Agreement.

     

    6.           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 New York applicable to
contracts made and to be performed therein.  This Agreement cannot be
changed or terminated except by a writing signed by Tremisis, the Stockholders,
the Investors and the Escrow Agent.

     

    7.           This
Agreement shall not create any fiduciary duty on Escrow Agent’s part to any of
the Tremisis, the Stockholders or the Investors, nor disqualify Escrow Agent
from representing Tremisis or any of its affiliates in any dispute with any
Stockholder or Investor, including any dispute with respect to this
Agreement.

     

    8.           Tremisis,
each Stockholder and each Investor hereby consents to the exclusive jurisdiction
of the New York state courts sitting in New York County and federal courts
sitting in such county with respect to any claim or controversy arising out of
this Agreement.   Service of process in any action or proceeding
brought against any party 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.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    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:

    


    To the
Stockholders:                                                    
 Lawrence S. Coben

    c/o Tremisis Energy
Acquisition

    Corporation
II

    40 West 22nd Street, Suite
11

    New York, New York 10010

    Facsimile:
(212) 253-4047

    


    and

    


    Ronald D.
Ormand

    2925
Briarpark, Suite 150-A

    Houston,
Texas  77042

    Facsimile:
(713) 963-5308

    


    To
Tremisis:                                                                 
Tremisis Energy Acquisition Corporation II

    2925
Briarpark, Suite 150-A

    Houston,
Texas 77042

    Attention:
Ronald D. Ormand

    Facsimile:
(713) 963-5308

    


    In either
case, with a copy
to:                                     
 Graubard Miller

    The
Chrysler Building

    405
Lexington Avenue

    New York,
New York 10174

    Attn:
David Alan Miller, Esq.

    Facsimile:
(212) 818-8881

    


    To
Investors:                                                            
     SoftForum Co., Ltd.

    (135-270)
6~7FL, SoftForum B/D.

    545-7
Dogok-Dong,

    Gangnam-Gu,
Seoul 135-270 S. Korea

    Attention:
Sang-Chul Kim, Chairman

    Facsimile:
+82-2-526-8474

    


    With a
copy
to:                                                           
  Mintz Levin Cohn Ferris Glovsky &

    Popeo, P.C.

    666 Third
Avenue

    New York,
New York  10017

    Attention:  Kenneth
R. Koch, Esq.

    Facsimile:
(212) 983-3115

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    


    To the
Escrow Agent, to it at:

    


    Graubard Miller

    405 Lexington Avenue

    New York, New York 10174

    Attention: David Alan Miller,
Esq.

    Facsimile: 212-818-8881

     

    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.

     

    (a)           All
notices delivered to the Escrow Agent shall refer to the provision of this
Agreement under which such notice is being delivered.

     

    (b)           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.

     

    [Remainder of page intentionally left
blank. Signature pages to follow.]

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement on
the date first above written.

    


    
      
        
          	
                  SELLERS:

                
	 
      
	
                  /s/ Lawrence S. Coben

                
	
                  Lawrence
      S. Coben

                
	 
      
	
                  /s/ Ronald D. Ormand

                
	
                  Ronald
      D. Ormand

                
	 
      
	
                  /s/ Stephen N. Casati

                
	
                  Stephen
      N. Casati

                
	 
      
	
                  /s/ Jon Schotz

                
	
                  Jon
      Schotz

                
	 
      
	
                  /s/ Charles A. Norris

                
	
                  Charles
      A. Norris

                
	 
      
	
                  /s/ Bill Armstrong

                
	
                  Bill
      Armstrong

                
	 
      
	
                  OLYMPUS
      CAPITAL INVESTMENT, LLC

                
	 
      	 
      
	
                  By:

                	
                  /s/ Dean Vanech

                
	 
      	
                  Dean
      Vanech, Member

                


        

      

    

    


    
      
        	
                /s/ Jerry Doren

              
	
                Jerry
      Doren

              
	 
      
	
                /s/ Owen Coleman

              
	
                Owen
      Coleman

              
	 
      
	
                /s/ Bill Goldstein

              
	
                Bill
      Goldstein

              
	 
      
	
                /s/ Trevor Wilson

              
	
                Trevor
      Wilson

              
	 
      
	
                /s/ David A. Preiser

              
	
                David
      A. Preiser

              
	 
      
	
                /s/ Brian McInerney

              
	
                Brian
      McInerney

              


      

    

    


    [Signature
Page - Escrow Agreement]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      
        	
                /s/ Richard
      Kassar

              
	
                Richard
      Kassar

              
	 
      
	
                /s/ David Levine

              
	
                David
      Levine

              
	 
      
	
                /s/ Jim Land

              
	
                Jim
      Land

              
	 
      
	
                /s/ Jonathan Jacobs

              
	
                Jonathan
      Jacobs

              
	 
      
	
                /s/ Gary C. Evans

              
	
                Gary
      C. Evans

              
	 
      
	
                COMPANY:

              
	 
      
	
                TREMISIS
      ENERGY ACQUISITION  CORPORATION II

              
	 
      	 
      
	
                By:

              	
                /s/ Lawrence S. Coben

              
	
                Name:

              	Lawrence
      S. Coben
	
                Title:

              	Chief
      Executive Officer
	 
      	 
      
	
                INVESTORS:

              
	 
      
	
                SOFTFORUM
      CO., LTD.

              
	 
      	 
      
	
                By:

              	
                /s/ Sang-Chul Kim

              
	
                Name:

              	Sang-Chul
      Kim
	
                Title:

              	Chairman
	 
      	 
      
	
                /s/ Sang-Chul Kim

              
	
                Sang-Chul
      Kim

              
	 
      
	
                ESCROW
      AGENT:

              
	 
      
	
                GRAUBARD
      MILLER

              
	 
      	 
      
	
                By:

              	
                /s/ Jeffrey M. Gallant

              
	
                Name:

              	Jeffrey
      M. Gallant
	
                Title:

              	Partner


      

    

    


    [Signature
Page - Escrow Agreement]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
1

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	
                                                  Name of Stockholder

                                                	  	
                                                  Number

                                                  of Warrants

                                                	  	 	
                                                  Cash to be Received upon Option

                                                  Exercise (Before Any Reduction and

                                                  Not Including Interest) ($)

                                                	 
	 
      	 	 	 	 	 	 
	
                                                  Lawrence
      S. Coben

                                                	 	 	450,000	 	 	 	356,603.77	 
	 	 	 	 	 	 	 	 	 
	
                                                  Ronald
      D. Ormand

                                                	 	 	450,000	 	 	 	356,603.77	 
	 	 	 	 	 	 	 	 	 
	
                                                  Jon
      Schotz

                                                	 	 	250,000	 	 	 	198,113.21	 
	 	 	 	 	 	 	 	 	 
	
                                                  Charles
      A. Norris

                                                	 	 	250,000	 	 	 	198,113.21	 
	 	 	 	 	 	 	 	 	 
	
                                                  Bill
      Armstrong

                                                	 	 	112,500	 	 	 	89,150.94	 
	 	 	 	 	 	 	 	 	 
	
                                                  Olympus
      Capital Investment, LLC

                                                	 	 	100,000	 	 	 	79,245.28	 
	 	 	 	 	 	 	 	 	 
	
                                                  Jerry
      Doren

                                                	 	 	75,000	 	 	 	59,433.96	 
	 	 	 	 	 	 	 	 	 
	
                                                  Owen
      Coleman

                                                	 	 	75,000	 	 	 	59,433.96	 
	 	 	 	 	 	 	 	 	 
	
                                                  Bill
      Goldstein

                                                	 	 	75,000	 	 	 	59,433.96	 
	 	 	 	 	 	 	 	 	 
	
                                                  Trevor
      Wilson

                                                	 	 	75,000	 	 	 	59,433.96	 
	 	 	 	 	 	 	 	 	 
	
                                                  David
      A. Preiser

                                                	 	 	50,000	 	 	 	39,622.64	 
	 	 	 	 	 	 	 	 	 
	
                                                  Brian
      McInerney

                                                	 	 	37,500	 	 	 	29,716.98	 
	 	 	 	 	 	 	 	 	 
	
                                                  Richard
      Kassar

                                                	 	 	37,500	 	 	 	29,716.98	 
	 	 	 	 	 	 	 	 	 
	
                                                  David
      Levine

                                                	 	 	37,500	 	 	 	29,716.98	 
	 	 	 	 	 	 	 	 	 
	
                                                  Jim
      Land

                                                	 	 	37,500	 	 	 	29,716.98	 
	 	 	 	 	 	 	 	 	 
	
                                                  Jonathan
      Jacobs

                                                	 	 	37,500	 	 	 	29,716.98	 
	 	 	 	 	 	 	 	 	 
	
                                                  Gary
      C. Evans

                                                	 	 	500,000	 	 	 	396,226.42