STOCK ESCROW AGREEMENT
Exhibit
10.4
STOCK
ESCROW AGREEMENT, dated as of December 15, 2006 (“Agreement”),
by
and among Restaurant Acquisition Partners, Inc., a Delaware corporation (the
“Company”),
Xxxxxxxxxxx X. Xxxxxx, Xxxx X. Xxxxx and Xxxxx X. Xxxx III (collectively
“Initial
Stockholders”)
and
Continental Stock Transfer & Trust Company, a New York corporation
(“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated December 15,
2006 (“Underwriting
Agreement”)
with
Ladenburg Xxxxxxxx & Co. Inc. and Capital Growth Financial, LLC acting as
the representative of the underwriters (the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase
3,333,333 units (“Units”)
of the
Company. Each Unit consists of one share of the Company’s Common Stock, par
value $.0001 per share, and two Warrants, each Warrant to purchase one share
of
Common Stock, all as more fully described in the Company’s Registration
Statement, No. 333-129316 on Form S-1 under the Securities Act of 1933, as
amended (“Registration
Statement”),
declared effective on December 14, 2006 (“Effective
Date”).
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit their shares of Common Stock of the Company, as set forth opposite
their
respective names in Exhibit A attached hereto (collectively “Escrow
Shares”),
in
escrow as hereinafter provided.
WHEREAS,
the Company and the Initial Stockholders 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 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 Shares.
On or
before the Effective Date, each of the Initial Stockholders shall deliver to
the
Escrow Agent certificates representing his respective Escrow Shares, to be
held
and disbursed subject to the terms and conditions of this Agreement. Each
Initial Stockholder acknowledges that the certificate representing his 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 first anniversary of the
date of the consummation of an initial business combination (“Escrow
Period”),
on
which date it shall automatically disburse each of the Initial Stockholder’s
Escrow Shares 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 Shares; and
provided further, that if, after the Company consummates an initial business
combination, 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, President 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 Initial Stockholders upon consummation of
the
transaction so that they 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 Initial Stockholders 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 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 Shares.
During
the Escrow Period, all dividends payable in cash with respect to the Escrow
Shares 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
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 or members of any
Initial Stockholder’s immediate family or to a trust or other entity, the
beneficiaries or owners of which are Initial Stockholders or a member or members
of an Initial Stockholder’s immediate family, (ii) by virtue of the laws of
descent and distribution upon death of any Initial Stockholder 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 (as defined below) signed by the Initial Stockholder transferring
the Escrow Shares. During the Escrow Period, the Initial Stockholders 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 Initial Stockholders has executed a letter agreement with 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.
2
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 breach of any provision of this Agreement or 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’s, 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
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 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.
3
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 resulting from the breach of any provision
of
this Agreement or 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.
6.2 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
affected by such change or modification.
6.3 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation thereof.
6.4 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.
6.5 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:
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxxxxxx X. Xxxxxx, Chief Executive Officer and President
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Xx., Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
4
If
to a
Stockholder, to his address set forth in Exhibit A.
If
to the
Escrow Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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.
6.6 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
an
initial business combination within the time period(s) specified in the
Registration Statement.
[Remainder
of Page Intentionally Left Blank.]
5
WITNESS
the execution of this Agreement as of the date first above written.
| RESTAURANT ACQUISITION PARTNERS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxxxxxx X. Xxxxxx |
||
|
Title:
Chief Executive Officer and Vice
President
|
||
| INITIAL STOCKHOLDERS: | ||
| |
|
|
| /s/ Xxxxxxxxxxx X. Xxxxxx | ||
|
Xxxxxxxxxxx X. Xxxxxx |
||
| /s/ Xxxx X. Xxxxx | ||
|
Xxxx X. Xxxxx |
||
| /s/ Xxxxx X. Xxxx III | ||
|
Xxxxx X. Xxxx III |
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name: Xxxxx Xxxxxxxx |
||
|
Title:
Vice President
|
||
[Signature
Page to Stock Escrow Agreement]
EXHIBIT
A
|
Names
and Addresses of Initial Stockholders
|
Number
of
Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
|
|||||||
|
Xxxxxxxxxxx
X. Xxxxxx
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
|
277,778
|
1
|
September
25, 2006
|
|||||||
|
Xxxxx
X. Xxxx III
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
|
277,778
|
2
|
September
25, 2006
|
|||||||
|
Xxxx
X. Xxxxx
0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
|
277,778
|
3
|
September
25, 2006
|
