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EXHIBIT 10.4
FORM OF STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of _____ __, 2005 ("AGREEMENT"), by and
among HARBOR ACQUISITION CORPORATION, a Delaware corporation ("COMPANY"), ROBERT
J. HANKS, DAVID A. R. DULLUM, GRAND CRU MANAGEMENT, LLC and TIMOTHY J. DURKIN
(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 ____
__, 2005 ("UNDERWRITING AGREEMENT"), with Ferris, Baker Watts, Incorporated
("FBW") acting as the lead underwriter (the "UNDERWRITER"), pursuant to which,
among other matters, the Underwriter has 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 $0.0001 per share, 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 Initial Stockholders have agreed as a condition of the sale of
the Units to deposit 100% of 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 six months after the consummation of a Business Combination
(as such term is defined in the Registration Statement) ("ESCROW PERIOD"), on
which date it shall, upon written instructions from each Initial Stockholder,
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 a 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.
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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 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 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 FBW 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 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.
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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.
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.
6.2 THIRD PARTY BENEFICIARIES. Each of the Initial Stockholders
hereby acknowledges that the Underwriter is third party beneficiaries of this
Agreement and this Agreement may not be modified or changed without the prior
written consent of FBW.
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 be affected by such change or
modification.
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:
Harbor Acquisition Corporation
One Boston Place - Suite 3630
Boston, Massachusetts 02108
Attn: Chief Executive Officer
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If to a Stockholder, to his address set forth in EXHIBIT A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: ________________
A copy of any notice sent hereunder shall be sent to:
Davis, Malm & D'Agostine, P. C.
One Boston Place
Boston, Massachusetts 02108
Attn: C. Michael Malm, Esquire
and:
Ferris, Baker Watts, Incorporated
100 Light Street, 8th Floor
Baltimore, MD 21202
Attn: ____________________
and:
Venable LLP
8010 Towers Crescent Drive
Suite 300
Vienna, Virginia 22182
Attn: Matthew B. Swartz, 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 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 periods specified in the Prospectus.
[SIGNATURE PAGE TO FOLLOW]
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WITNESS the execution of this Agreement as of the date first above written.
HARBOR ACQUISITION CORPORATION
By:
----------------------------------------
Robert J. Hanks, Chief Executive Officer
INITIAL STOCKHOLDERS:
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Robert J. Hanks
----------------------------------------
David A. R. Dullum
GRAND CRU MANAGEMENT, LLC
By:
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Robert J. Hanks, Manager
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Timothy J. Durkin
ESCROW AGENT
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By:
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Title:
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EXHIBIT A
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STOCK
NUMBER OF CERTIFICATE DATE OF
NAME AND ADDRESS OF INITIAL STOCKHOLDER SHARES NUMBER INSIDER LETTER
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