Exhibit 10.3
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of __________, 2007 (the "AGREEMENT"),
by and among HIGHPOINT ACQUISITION CORP., a Delaware corporation (the
"COMPANY"), HARBOR HEALTHCARE HOLDING LLC AND MORECO PARTNERS LLC (collectively
the "INITIAL STOCKHOLDERS") and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a
New York corporation (the "ESCROW AGENT").
WHEREAS, the Company has entered into an Underwriting Agreement, dated
_____________, 2007 (the "UNDERWRITING AGREEMENT"), with X.X. Xxxxxxxxxx & Co.,
Inc. ("X.X. XXXXXXXXXX") acting as representative of the several underwriters
(collectively, the "UNDERWRITERS"), pursuant to which, among other matters, the
Underwriters have agreed to purchase 4,166,667 units (the "UNITS") of the
Company. Each Unit consists of one share of the Company's Common Stock, par
value $0.001 per share (the "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 ____________, 2007 (the "PROSPECTUS") comprising part of
the Company's Registration Statement on Form S-1 (File No. 333-136908) under the
Securities Act of 1933, as amended (the "REGISTRATION STATEMENT"), declared
effective on ____________, 2007 (the "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
the "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 third anniversary of the Effective Date (the "ESCROW
PERIOD"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder's Escrow Shares (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
Shares and; provided further, 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 Operating 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 (the "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 of 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 or upon the dissolution and
liquidation of any Initial Stockholder and the distribution of its assets to its
members, (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 X.X. Xxxxxxxxxx and the Company, dated as
indicated on Exhibit A hereto, and which is filed as an exhibit to the
Registration Statement (the "INSIDER LETTER"), respecting the rights and
obligations of such Initial Stockholder in certain events, including but not
limited to the liquidation of the Company.
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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.
5.3 Compensation. The Escrow Agent shall be entitled to
reasonable compensation from the Company for all services rendered by it under
the specific terms of this Agreement. 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, subject to the prior written consent of the Company, not
to be unreasonably withheld.
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.
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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, without regard to the conflicts of law principles that
would result in the application of the substantive laws of another jurisdiction.
6.2 Third Party Beneficiaries. Each of the Initial
Stockholders, the Company, and Escrow Agent hereby specifically acknowledge and
agree 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 X.X. Xxxxxxxxxx.
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 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 sufficiently given when so delivered if by
hand or overnight delivery or if sent by certified mail or private courier
service within five days after deposit of such notice, postage prepaid, or sent
by facsimile transmission (with confirmation of receipt), addressed as follows:
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If to the Company, to:
Highpoint Acquisition Corp.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: J. Xxxxxxx Xxxxxxxx, Chief Executive Officer
Fax: ________________
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: __________________
Fax: ________________
A copy of any notice sent hereunder shall be sent to:
Blank Rome LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Seer, Esq.
Fax: (000) 000-0000
and:
X.X. Xxxxxxxxxx & Co., Inc.
00 Xxxxxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
and:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
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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 period(s) specified in the Prospectus.
6.8 Counterparts. This Agreement may be executed in several
counterparts, each one of which shall constitute an original and may be
delivered by facsimile transmission, and together shall constitute one
instrument.
[Remainder of Page Intentionally Left Blank.]
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WITNESS the execution of this Agreement as of the date first above
written.
HIGHPOINT ACQUISITION CORP.
By:
---------------------------
Name: J. Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
INITIAL STOCKHOLDERS:
HARBOR HEALTHCARE HOLDING LLC
By:
---------------------------
Name:
Title:
MORECO PARTNERS LLC
By:
---------------------------
Name:
Title:
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CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:
------------------------
Name:
Title:
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EXHIBIT A
NAME AND ADDRESS OF NUMBER STOCK CERTIFICATE DATE OF
INITIAL STOCKHOLDER OF SHARES NUMBER INSIDER LETTER
Harbor Healthcare Holding LLC 800,354 August 24, 2006
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxxx 00000
Moreco Partners LLC 241,313 August 24, 2006
000 Xxxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
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