Exhibit 10.4


 


STOCK
ESCROW AGREEMENT


 


STOCK
ESCROW AGREEMENT, dated as of December 7, 2020 (“Agreement”), by and among DD3
Acquisition Corp. II, a Delaware corporation (“Company”), DD3 Sponsor
Group, LLC, a Delaware limited liability company (the “Sponsor”), the stockholders of the Company listed on
Exhibit A hereto (together with Sponsor and any permitted transferee of the Sponsor or such stockholders after the date hereof
in accordance with the terms hereof being referred to as the “Founders”) and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a New York limited purpose trust company (“Escrow Agent”).


 


WHEREAS,
the Company was formed for the purpose of entering into a merger, capital stock exchange, asset acquisition, stock purchase, recapitalization,
reorganization or other similar business combination (a “Business Combination”) with one or more businesses or entities.


 


WHEREAS,
the Company has entered into an Underwriting Agreement, dated as of December 7, 2020 (“Underwriting Agreement”), with EarlyBirdCapital,
Inc. (the “Representative”) acting as representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase 11,000,000 units (“Units”) of the
Company, plus an additional 1,650,000 Units if the Underwriters exercise their over-allotment option in full. Each Unit consists
of one share of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), and one-half
of one warrant (“Warrant”), each whole Warrant to purchase one share of Common Stock, all as more fully described
in the Company’s final Prospectus, dated December 7, 2020 (“Prospectus”) comprising part of the Company’s
Registration Statement on Form S-1 (File No. 333-250212) under the Securities Act of 1933, as amended (“Registration Statement”),
declared effective on December 7, 2020 (“Effective Date”).


 


WHEREAS,
the Founders have agreed as a condition of the sale of the Units to deposit their shares of Class B common stock, par value $0.0001
per share, of the Company (“Founder Shares”) in escrow as hereinafter provided.


 


WHEREAS,
the Company and the Founders desire that the Escrow Agent accept the Founder Shares, in escrow, to be held and disbursed as hereinafter
provided.


 


IT
IS AGREED:


 


1. Appointment
of Escrow Agent. The Company and the Founders 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 Shares. On or before the Effective Date, the Founders’ respective Founder Shares set forth on Exhibit A hereto shall
be deposited in escrow, to be held and disbursed subject to the terms and conditions of this Agreement. The Founders acknowledge
that the shares deposited in escrow will be legended to reflect the deposit of such shares under this Agreement.


 


3. Disbursement
of the Escrow Shares.


 


3.1
If the over-allotment option to purchase all or a portion of the additional 1,650,000 Units of the Company is not exercised in
full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Sponsor agrees that the Escrow
Agent shall return to the Company for cancellation, at no cost, the number of Founder Shares held by the Sponsor determined by
multiplying 412,500 by a fraction, (i) the numerator of which is 1,650,000 minus the number of Units purchased by the Underwriters
upon the exercise of the over-allotment option, and (ii) the denominator of which is 1,650,000. The Company shall promptly provide
notice to the Escrow Agent of the expiration or termination of the over-allotment option and the number of Units, if any, purchased
by the Underwriters in connection with the exercise thereof.


 






    


    


    

 


3.2
Except as otherwise set forth herein, the Escrow Agent shall hold the Founder Shares remaining after any cancellation required
pursuant to Section 3.1 above (such remaining shares to be referred to herein as the “Escrow Shares”) until the earlier
of one year after the date of the consummation of an initial Business Combination and the date on which the closing price of the
Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations)
for any 20 trading days within any 30-trading day period commencing 150 days after the consummation of an initial Business Combination
(such period of time during which the Escrow Shares are held in escrow, the “Escrow Period”). The Company shall promptly
provide notice of the consummation of an initial Business Combination to the Escrow Agent. Upon completion of the Escrow Period,
the Escrow Agent shall disburse such amount of each Founder’s Escrow Shares to the applicable Founder; provided, however,
that if, after the consummation of an initial Business Combination and during the Escrow Period, the Company (or the surviving
entity) 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 notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer
of the Company (or the surviving entity), in form reasonably acceptable to the Escrow Agent, certifying that such transaction
is then being consummated or such conditions have been achieved, as applicable, release the Escrow Shares to the Founders. The
Escrow Agent shall have no further duties hereunder after the disbursement of the Escrow Shares in accordance with this Section
3.2.


 


3.3 If
the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company’s Trust Account (as defined
in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Escrow
Agent as trustee thereunder) is being liquidated, then the Escrow Agent shall deliver the certificates representing the Escrow
Shares to the Founders promptly after the public stockholders are paid the liquidating distributions and shall have no further
duties hereunder.


 


4. Rights
of Founders 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 Founders shall retain all of their rights as stockholders of the Company as long as any shares are held in escrow pursuant
to this Agreement, including, without limitation, the right to vote such shares.


 


4.2 Dividends
and Other Distributions in Respect of the Escrow Shares. For as long as any shares are held in escrow pursuant to this Agreement,
all dividends payable in cash with respect to the Escrow Shares shall be paid to the Founders, 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, the only permitted transfers of the Escrow Shares will be (i) among the Founders or
to the Company’s or the Founders’ members, officers, directors, consultants or their affiliates, (ii) to a Founder’s
stockholders or members upon such Founder’s liquidation, in each case if the Founder is an entity, (iii) by bona fide gift
to a member of a Founder’s immediate family or to a trust, the beneficiary of which is a Founder or a member of a Founder’s
immediate family, in each case for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death,
(v) pursuant to a qualified domestic relations order, (vi) to the Company for no value for cancellation in connection with the
consummation of a Business Combination, (vii) in connection with the consummation of a Business Combination at prices no greater
than the price at which the Escrow Shares were originally purchased, (viii) in the event of the Company’s liquidation prior
to its consummation of an initial Business Combination or (ix) in the event that, subsequent to the consummation of an initial
Business Combination, the Company completes a liquidation, merger, capital stock exchange or other similar transaction which results
in all of the Company’s stockholders having the right to exchange their Common Stock for cash, securities or other property;
provided, however, that except for clauses (vi), (viii) or (ix) or with the Company’s prior written consent, such permitted
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.


 


4.4 Insider
Letter. The Founders have executed a letter agreement with the Company, dated as of the date hereof, the form of which is
filed as an exhibit to the Registration Statement (“Insider Letter”), respecting the rights and obligations of such
Founders 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 in good faith 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.
Subject to Section 5.8 below, the Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses,
including reasonable 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, fraud 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.
Subject to Section 5.8 below, 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.


 


5.4 Further
Assurances. From time to time on and after the date hereof, the Company and the Founders 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 the Escrow Shares over to a successor escrow agent appointed by the Company and
approved by the Representative, which approval will not be unreasonably withheld, conditioned or delayed. 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 in the State of New York.


 


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 all of the other parties hereto; provided, however, that such resignation shall become effective only
upon the appointment of a successor escrow agent selected by the Company and approved by the Representative, which approval will
not be unreasonably withheld, conditioned or delayed.


 






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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, fraud or willful misconduct.


 


5.8 Waiver.
The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”)
in, or to any distribution of, the Trust Account 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 be governed by and construed and enforced 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.
The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough
of Manhattan, for purposes of resolving any disputes hereunder. As to any claim, cross-claim, or counterclaim in any way relating
to this Agreement, each party waives the right to trial by jury.


 


6.2 Third
Party Beneficiaries. Each of the parties to this Agreement hereby acknowledges that the Representative is a third party beneficiary
of this Agreement.


 


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 only be changed, amended, or modified by a writing signed by each of the parties
hereto.


 


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, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing
and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery,
by email or by electronic transmission:


 


If
to the Company, to:


 


DD3
Acquisition Corp. II 


Pedregal
24, 3rd Floor, Interior 300 


Colonia
Molino del Rey, Del. Miguel Hidalgo 


11040
Mexico City, Mexico





Attn:
Martin Werner





Email:
martin.werner@dd3.mx


 


If
to a Founder, to his/her/its address set forth in Exhibit A.


 


and
if to the Escrow Agent, to:


 


Continental
Stock Transfer & Trust Company





1
State Street





New
York, New York 10004





Attn:
Chairman


 






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A
copy of any notice sent hereunder shall be sent to:


 


EarlyBirdCapital,
Inc.





366
Madison Ave., 8th Floor





New
York, NY 10017





Attn:
Steven Levine





Fax
No.: (212) 661-4936





Email:
slevine@ebccap.com


 


with
a copy to: 


 


Greenberg
Traurig, P.A.





333
S.E. 2nd Avenue 


Miami,
FL 33131





Attn:
Alan I. Annex, Esq.





Fax
No.: (305) 579-0717





Email:
annexa@gtlaw.com


 


and:


 


Graubard
Miller





The
Chrysler Building





405
Lexington Avenue





New
York, New York 10174





Attn:
David Alan Miller, Esq.





Fax
No.: (212) 818-8881





Email:
dmiller@graubard.com


 


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 Trust Account. The Company shall give the Escrow Agent written notification of the liquidation of the Trust Account
in the event that the Company fails to consummate a Business Combination within the time period specified in the Company’s
Amended and Restated Certificate of Incorporation, as the same may be amended from time to time.


 


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.


 


[Signature
Page Follows]


 






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WITNESS
the execution of this Agreement as of the date first above written.


 


	 	DD3
    ACQUISITION CORP. II 
	 	 
	 	By:  	/s/
    Martin Werner       
	 	 	Name: 	Martin Werner
	 	 	Title:    	Chief Executive Officer
	 	 	 
	 	CONTINENTAL
    STOCK TRANSFER & TRUST COMPANY, as Escrow Agent
	 	 	 
	 	By:	/s/
    Stacy Aqui 
	 	 	Name:  	Stacy Aqui
	 	 
	Title:
	Vice
President 

	 	 
	 	FOUNDERS:
	 	 
	 	DD3
    SPONSOR GROUP, LLC
	 	 
	 	By: 	/s/
    Jorge Combe 
	 	 	Name:  	Jorge Combe
	 	 	Title:    	Manager





 


[Signature Page to Stock Escrow Agreement]


 






    


    


    

 


EXHIBIT
A


 


	Name
    and Address of Founder	 	Number
    of Shares	 
	 	 	 	 
	DD3
                                         Sponsor Group, LLC

        

        Pedregal
        24, 3rd Floor, Interior 300

        

        Colonia
        Molino del Rey, Del. Miguel Hidalgo

        

        11040
        Mexico City, Mexico

        
	 	3,162,500