SECURITIES ESCROW AGREEMENT
EXHIBIT
10.8
SECURITIES
ESCROW AGREEMENT, dated as of _____________, 2008 (“Agreement”), by and among
STACCATO ACQUISITION CORP., a Delaware corporation (“Company”), XXXX X.
XXXXXXXXX, XXXXXXXXX 1991 CHILDREN’S TRUST, ARNAUD AJDLER, XXXXX X. XXXX,
XXXXXXX X. XXXXXXX, XXXXX
X.
XXXXXXXXX, XXXXX XXXXXXX, XXXXXXX X. XXXXXXXXXXX
and XXXX
X. XXXXXXXXXX (collectively “Initial Stockholders”) and AMERICAN STOCK TRANSFER
& TRUST COMPANY, a New York corporation (“Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated __________, 2008
(“Underwriting Agreement”), with EarlyBirdCapital, Inc. (“EBC”) acting as
representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
6,125,000 units (“Units”) of the Company, plus up to an additional 918,750 Units
pursuant to an over-allotment option granted to the Underwriters. Each Unit
consists of one share of the Company’s common stock, par value $.0001 per share
(“Common Stock”), and one warrant (“Warrant”) to purchase one share of Common
Stock, all as more fully described in the Company’s final Prospectus, dated
_________, 2008 (“Prospectus”) comprising part of the Company’s Registration
Statement on Form S-1 (File No. 333-151642) under the Securities Act of 1933,
as
amended (“Registration Statement”), declared effective on ________, 2008
(“Effective Date”).
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit their Units of the Company, as set forth opposite their respective
names
in Exhibit A attached hereto (collectively “Escrow Securities”), in escrow as
hereinafter provided.
WHEREAS,
the Company and the Initial Stockholders 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 Stockholders 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 Securities.
On or
before the Effective Date, each of the Initial Stockholders shall deliver to
the
Escrow Agent certificates representing his respective Escrow Securities, to
be
held and disbursed subject to the terms and conditions of this Agreement. Each
Initial Stockholder acknowledges that the certificate representing his Escrow
Securities is legended to reflect the deposit of such Escrow Securities under
this Agreement.
3. Disbursement
of the Escrow Securities.
3.1 The
Escrow Agent shall hold the Escrow Securities until the date that is one year
after the consummation of a Business Combination (as defined in the Company’s
amended and restated certificate of incorporation) (“Escrow Period”), on which
date it shall, upon written instructions from each Initial Stockholder, disburse
each of the Initial Stockholder’s Escrow Securities (and any applicable stock
power) to such Initial 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 the Escrow Agent
shall promptly destroy the certificates representing the Escrow Securities
held
pursuant to this agreement; provided, further, that if the Underwriters do
not
exercise their over-allotment option to purchase an additional 918,750 Units
of
the Company (as described in the Prospectus) in full, the Initial Stockholders
agree that no later than by the end of the 45-day period in which the
Underwriters may exercise their over-allotment option, the Company shall give
the Escrow Agent written notice with respect to the amount, if any, of the
over-allotment that was exercised by the Underwriters and, upon such notice,
the
Escrow Agent shall return to the Company for cancellation, at no cost, the
number of Escrow Securities and Escrow Warrants held by each Initial Stockholder
determined by multiplying (a) the product of (i) 229,687, multiplied
by (ii) a fraction, (x) the numerator of which is the number of Escrow
Securities held by each Initial Stockholder, and (y) the denominator of
which is the total number of Escrow Securities, by (b) a fraction,
(i) the numerator of which is 918,750 minus the number of Units purchased
by the Underwriters upon the exercise of their over-allotment option, and
(ii) the denominator of which is 918,750; provided further, however, that
if, after the Company consummates a Business Combination (as such term is
defined in the Company’s amended and restated certificate of incorporation),
(i) 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 or (ii) the last sales price
of the Common Stock equals or exceeds $11.50 per share for any 20 trading days
within any 30-trading day period after the consummation of the Business
Combination, then the Escrow Agent will, upon receipt of a certificate, executed
by the Chairman of the Board, President or other authorized officer of the
Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated or such conditions have been achieved,
as
applicable, release the Escrow Securities to the Initial Stockholders. The
Escrow Agent shall have no further duties hereunder after the disbursement
or
destruction of the Escrow Securities in accordance with this
Section 3.
3.2 If
the
Company consummates a Business Combination in which more than a total of 35%
of
the shares of Common Stock sold in the IPO are either (i) purchased by the
Company prior to the consummation of such Business Combination or (ii)
voted
by
the holders of such shares against a proposed Business Combination with a
corresponding exercise of conversion rights and such Business Combination is
consummated
(each as
described more fully in the Prospectus), the Escrow Agent shall, upon receipt
of
written instructions from the Company, return to the Company for cancellation
the number of Escrow Securities which results in the Initial Stockholders
collectively owning no more than 27.9% of the Company’s outstanding shares of
Common Stock immediately prior to the consummation of such Business Combination
(without giving effect to any shares of Common Stock that might be issued in
connection with the Business Combination). Such instructions shall set forth
both the aggregate number of shares of Common Stock that were purchased or
are
being converted into cash and the number of Escrow Securities to be delivered
to
the Company for cancellation.
4. Rights
of Initial Stockholders in Escrow Securities.
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 Initial Stockholders shall retain all of their rights
as
stockholders 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 Securities.
During
the Escrow Period, all dividends payable in cash with respect to the Escrow
Securities shall be paid to the Initial Stockholders, 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 Securities” shall be deemed to include the Non-Cash Dividends
distributed thereon, if any.
4.3 Restrictions
on Transfer.
During
the escrow period, the only permitted transfers of the Escrow Securities will
be
(A) pledges to secure obligations incurred in connection with purchases of
the
Company’s securities or (B) transfers (i) to the Company’s officers and
directors, (ii) to an entity’s members upon its liquidation, (iii) by bona fide
gift to a member of an Initial Stockholder’s immediate family or to a trust, the
beneficiary of which is an Initial Stockholder or a member of an Initial
Stockholder’s immediate family for estate planning purposes, (iv) by virtue of
the laws of descent and distribution upon death of any Initial Stockholder
or
(v) 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 Initial Stockholder
transferring the Escrow Securities.
2
4.4 Insider
Letters.
Each of
the Initial Stockholders has executed a letter agreement with EBC 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 Initial 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 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 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 reasonable 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.
3
5.4 Further
Assurances.
From
time to time on and after the date hereof, the Company and the Initial
Stockholders 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 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.
5.8 Waiver.
The
Escrow Agent hereby waives any and all right, title, interest or claim of any
kind (each, a “Claim”) in or to any distribution of the Trust Account (as
defined in the Investment Management Trust Agreement dated as of the date hereof
by and between the Company and the Escrow Agent, as trustee thereunder) and
hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for
any Claim against the Trust Account for any reason whatsoever.
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.
6.2 Third
Party Beneficiaries.
Each of
the Initial Stockholders 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 EBC.
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.
4
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:
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxx
X.
Xxxxxxxxx
If
to a
Stockholder, to his address set forth in Exhibit A.
and
if to
the Escrow Agent, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
A
copy of
any notice sent hereunder shall be sent to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx
Xxxx Xxxxxx, Esq.
and:
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx
Xxxxxx
and:
Xxxxxxxxx
Traurig, LLP
Met
Life
Building
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
X.
Xxxxx, 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.
6.8 Counterparts.
This
Agreement may be executed in several counterparts, each one of which may be
delivered by facsimile transmission and each of which shall constitute an
original, and together shall constitute but one instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
WITNESS
the execution of this Agreement as of the date first above written.
By: __________________________
Name:
Title:
INITIAL
STOCKHOLDERS:
XXXXXXXXX
1991 CHILDREN’S TRUST
By: ______________________________
Name:
Title:
______________________________
XXXX
X.
XXXXXXXXX
______________________________
ARNAUD
AJDLER
______________________________
XXXXX
X.
XXXX
______________________________
XXXXXXX
X. XXXXXXX
______________________________
XXXXX
X.
XXXXXXXXX
______________________________
XXXXX
XXXXXXX
______________________________
XXXXXXX
X. XXXXXXXXXXX
______________________________
XXXX
X.
XXXXXXXXXX
AMERICAN
STOCK TRANSFER & TRUST COMPANY
By:________________________________
Name:
Title:
6
EXHIBIT
A
|
Name
and Address of
Initial
Stockholder
|
Number
of
Escrow Securities
|
Unit
Certificate
Number
|
Date
of
Insider
Letter
|
|
Xxxx
X. Xxxxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
1,008,749
|
1
|
_________,
0000
|
|
Xxxxxxxxx
1991 Children’s Trust
c/o
Xxxx X. Xxxxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
250,000
|
2
|
_________,
2008
|
|
Arnaud
Ajdler
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
176,094
|
3
|
_________,
2008
|
|
Xxxxx
X. Xxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
88,047
|
4
|
_________,
2008
|
|
Xxxxxxx
X. Xxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
88,047
|
5
|
_________,
2008
|
|
Xxxxx
X. XxXxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
37,500
|
6
|
_________,
0000
|
|
Xxxxx
Xxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
37,500
|
7
|
_________,
2008
|
|
Xxxxxxx
X. Xxxxxxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
37,500
|
8
|
_________,
2008
|
|
Xxxx
X. Xxxxxxxxxx
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
37,500
|
9
|
_________,
2008
|
7
