EX 10.8
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of _________, 2005
("Agreement"), by and among RPCP INVESTMENTS, LLLP ("Existing Stockholder") and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation ("Escrow
Agent").
WHEREAS, the Company has entered into an Underwriting Agreement,
dated _____________, 2005 ("Underwriting Agreement"), with Xxxxxx Xxxxxx & Co.
Inc. and EarlyBirdCapital, Inc. acting as representatives ("Representatives") of
the several underwriters (collectively, the "Underwriters"), pursuant to which,
among other matters, the Underwriters have agreed to purchase 10,000,000 units
("Units") of the Company. Each Unit consists of one share of the Company's
common stock, par value $.0001 per share ("Common Stock"), and two Warrants,
each Warrant to purchase one share of Common Stock, all as more fully described
in the Company's final Prospectus, dated _____________, 2005 ("Prospectus")
comprising part of the Company's Registration Statement on Form S-1 (File No.
333-_______) under the Securities Act of 1933, as amended ("Registration
Statement"), declared effective on _____________, 2005 ("Effective Date").
WHEREAS, the Existing Stockholder has agreed as a condition of
the sale of the Units to deposit its shares of Common Stock of the Company, as
set forth opposite its name in Exhibit A attached hereto (collectively "Escrow
Shares"), in escrow as hereinafter provided.
WHEREAS, the Company and the Existing Stockholder desire that
the Escrow Agent accept 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 Existing
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 SHARES. On or before the Effective Date, the
Existing Stockholder shall deliver to the Escrow Agent a certificate
representing its respective Escrow Shares, to be held and disbursed subject to
the terms and conditions of this Agreement. The Existing Stockholder
acknowledges that the certificate representing its Escrow Shares is legended to
reflect the deposit of such Escrow Shares under this Agreement.
3. DISBURSEMENT OF THE ESCROW SHARES. The Escrow Agent shall hold
the Escrow Shares until the third anniversary of the Effective Date ("Escrow
Period"), on which date it shall, upon written instructions from the Existing
Stockholder, disburse the Existing Stockholder's Escrow Shares to the Existing
Stockholder; provided, however, that if the Escrow Agent is notified by the
Company pursuant to Section 6.7 hereof that the Company is being liquidated at
any time during the Escrow Period, then immediately prior to the effectiveness
of such liquidation, the Escrow Agent shall promptly destroy the certificates
representing the Escrow Shares and the Escrow Shares shall no longer be
considered issued and outstanding securities of the Company; provided further,
however, that if, after the Company consummates a Business Combination (as such
term is defined in the Registration Statement), it (or the surviving entity)
subsequently consummates a liquidation, merger, stock exchange or other similar
transaction which results in all of the stockholders of such entity having the
right to exchange their shares of Common Stock 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 Existing Stockholder upon consummation of the
transaction so that it can similarly participate. The Escrow Agent shall have no
further duties hereunder after the disbursement or destruction of the Escrow
Shares in accordance with this Section 3.
4. RIGHTS OF EXISTING STOCKHOLDER IN ESCROW SHARES.
4.1 VOTING RIGHTS AS A STOCKHOLDER. Subject to the terms of
the Insider Letter described in Section 4.4 hereof and except as herein
provided, the Existing Stockholder shall retain all of its rights as a
stockholder of the Company during the Escrow Period, including, without
limitation, the right to vote such shares.
4.2 DIVIDENDS AND OTHER DISTRIBUTIONS IN RESPECT OF THE
ESCROW SHARES. During the Escrow Period, all dividends payable in cash with
respect to the Escrow Shares shall be paid to the Existing Stockholder, but 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 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) upon the dissolution and liquidation of the Existing
Stockholder and the distribution of assets to its limited partners; (ii) by gift
to a immediate family member of the Existing Stockholder's limited partners or
to a trust, the beneficiary of which is a limited partner of the Existing
Stockholder or a member of the immediate family of the Existing Stockholder's
limited partners, (iii) by virtue of the laws of descent and distribution upon
death of any limited partner of the Existing Stockholder, or (iv) 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 Existing Stockholder transferring the Escrow
Shares. During the Escrow Period, the Existing Stockholder shall not pledge or
grant a security interest in the Escrow Shares or grant a security interest in
its rights under this Agreement.
4.4 INSIDER LETTERS. The Existing Stockholder has executed a
letter agreement with the Representatives and the Company, dated as indicated on
Exhibit A hereto, and which is filed as an exhibit to the Registration Statement
("Insider Letter"), respecting the rights and obligations of such Existing
Stockholder 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
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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 Shares 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 Shares or
it may deposit the Escrow Shares with the clerk of any appropriate court or it
may retain the Escrow Shares 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 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
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 Existing 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
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. 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 Shares 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.
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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.
6.2 THIRD PARTY BENEFICIARIES. The Existing 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 the Representatives.
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 the 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 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:
Coconut Palm Acquisition Corp.
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chairman
If to a Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
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A copy of any notice sent hereunder shall be sent to:
Xxxxxx Xxxxxx & Co. Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
and:
EarlyBirdCapital, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
and:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Towers
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
and:
Xxxxxxxx Xxxxxx
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx Xxxxxx, 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.
6.7 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 Prospectus.
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WITNESS the execution of this Agreement as of the date first
above written.
COCONUT PALM ACQUISITION CORP.
By: ________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
EXISTING STOCKHOLDER:
RPCP INVESTMENTS, LLLP
By: ________________________________
Name:
Title:
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By: ________________________________
Name:
Title:
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EXHIBIT A
Stock
Name and Address of Number Certificate Date of
Existing Stockholder of Shares Number Insider Letter
-------------------- --------- ----------- --------------
RPCP Investments, LLP 2,500,000 1 May 17, 2005
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
