exv10w4






Exhibit 10.4




SECURITIES ESCROW AGREEMENT




     SECURITIES ESCROW AGREEMENT, dated as of __________, 2010 (the “Agreement”) by and among L&L
Acquisition Corp., a Delaware corporation (the “Company”), John L. Shermyen, LLM Structured Equity
Fund L.P., a Delaware limited partnership, LLM Investors L.P., a Delaware limited partnership, John
A. Svahn, E. David Hetz, Alan W. Pettis and William A. Landman (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 __________, 2010
(“Underwriting Agreement”) with Morgan Joseph LLC, (“MJ” or the “Representative”), acting as
representative of the several underwriters (collectively, the “Underwriters”), pursuant to which,
among other matters, the Underwriters have agreed to purchase 5,000,000 units (not including the
Underwriters’ over-allotment option) (the “Units”) of the Company’s securities. Each Unit consists
of one share of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), and
one warrant (a “Warrant”). Each Warrant entitles the holder to purchase one share of Common Stock,
all as more fully described in the Company’s definitive Prospectus, dated __________, 2010
(“Prospectus”) comprising part of the Company’s registration statement on Form S-1 (File No.
333-168949) under the Securities Act of 1933, as amended (the “Registration Statement”), declared
effective on __________, 2010 (the “Effective Date”);





     WHEREAS, each of the Initial Stockholders has agreed, as a condition of the Underwriters’
obligation to purchase the Units pursuant to the Underwriting Agreement and to offer them to the
public, to deposit all of its shares of Common Stock, as set forth opposite its name on Exhibit
A attached hereto, in aggregate 1,437,500 shares consisting of (i) 638,889 shares (up to 83,333
of which will be forfeited if the Underwriters’ over-allotment option is not exercised in full)
(the “First Tranche Shares”) and (ii) 798,611 shares (up to 104,167 of which will be forfeited if
the Underwriters’ over-allotment option is not exercised in full) (the “Second Tranche Shares” and
together with the First Tranche Shares, the “Escrow Shares”), in escrow as hereinafter provided;




     WHEREAS, the Company has entered into a Warrant Subscription Agreement with each of the
Initial Stockholders dated __________, 2010, pursuant to which the Initial Stockholders have agreed
to purchase an aggregate of 5,000,000 warrants (the “Private Warrants” and, together with the
Escrow Shares, the “Escrow Securities”) in a private placement transaction;



     WHEREAS, the Initial Stockholders have agreed as a condition of the sale of the Private
Warrants to deposit all of their respective Escrow Securities, as set forth opposite their
respective names on Exhibit A attached hereto, with the Escrow Agent as hereinafter
provided; and



     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, the
Initial Stockholders shall deliver to the Escrow Agent certificates representing their respective
Escrow Securities, in proper



 









 




transfer order with medallion guaranteed stock powers, to be held and disbursed subject to the
terms and conditions of this Agreement. The Initial Stockholders acknowledge and agree that the
certificates representing the Escrow Securities will bear a legend to reflect the deposit of such
Escrow Securities under this Agreement.




     3. Disbursement of the Escrow Securities. The Escrow Agent shall hold each
of the Escrow Shares and the Private Warrants until the termination of their respective Escrow
Periods (as defined below). In the case of the Escrow Shares, the “Escrow Period” shall be the
period beginning on the date the certificates representing the Escrow Shares are deposited with the
Escrow Agent and ending on the date that is, with respect to the First Tranche Shares, one year
following the consummation of the Company’s initial business combination (as such term is defined
in the Registration Statement) and with respect to the Second Tranche Shares, the date of the first
to occur, if ever, of (x) the last sales price of the Company’s Common Stock equaling or exceeding
$18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations
and the like) for any 20 trading days within any 30-trading day period or (y) the consummation of a
transaction following the Company’s initial business combination in which all of the Company’s
stockholders have the right to exchange their shares of Common Stock for cash consideration which
equals or exceeds $18.00 per share; provided, that in the event neither (x) nor (y) has
occurred within five years following the consummation of the Company’s initial business combination
(the “Second Tranche Deadline”), the Second Tranche Shares shall be forfeited. In the case of the
Private Warrants, the “Escrow Period” shall be the period beginning on the date the certificates
representing the Private Warrants are deposited with the Escrow Agent and ending 30 days following
the date of the consummation of the Company’s initial business combination. On the termination
date of the applicable Escrow Period, the Escrow Agent shall, upon written instructions from the
Company, disburse the Escrow Securities to such holders; provided, however, that if
the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that (i) the Company is
being liquidated at any time during the Escrow Period, (ii) up to an aggregate of 187,500 of the
Escrow Shares have been forfeited because the Underwriters did not exercise their over-allotment
option in full or (iii) the Second Tranche Shares have been forfeited because neither (x) nor (y)
above occurred on or before the Second Tranche Deadline, then the Escrow Agent shall promptly
destroy the certificates representing such Escrow Securities (or portion thereof, as applicable).
The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of
the Escrow Securities in accordance with this Section 3.



     4. Rights of Initial Holder 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, each Initial Stockholder
shall retain all of its rights as a stockholder of the Company during the Escrow Period, including,
without limitation, the right to vote the Escrow Shares; provided that the Initial
Stockholders shall not vote the Second Tranche Shares until such time, if ever, that such shares
are released to them.




          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 other
than the Second Tranche Shares shall be paid to the Initial Stockholders, but all dividends payable
in cash with respect to the Second Tranche Shares or in stock or other non-cash property with
respect to all of the Escrow Securities (“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, no sale, transfer
or other disposition may be made of any or all of the Escrow Securities except (i) upon the
dissolution and






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liquidation of holder and the distribution of assets to its members, (ii) by gift to an
immediate family member or member of any Initial Stockholder or to a trust, the beneficiary of
which is an immediate family member or member of such Initial Stockholder, (iii) by virtue of the
laws of descent and distribution upon death of any Initial Stockholder, (iv) pursuant to a
qualified domestic relations order, (v) in the event of the Company’s liquidation prior to
completion of its initial business combination or (vi) in the event of the Company’s consummation
of a liquidation, merger, stock exchange or other similar transaction which results in all of the
Company’s stockholders having the right to exchange their shares of common stock for cash,
securities or other property subsequent to the Company’s consummation of an initial business
combination; 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 that is transferring the
Escrow Shares. Even if transferred in accordance with this Section 4.3, the Escrow Securities will
remain subject to this Agreement and may be released from escrow only in accordance with Section 3
hereof. During the Escrow Period, the Initial Stockholders shall not pledge or grant a security
interest in the Escrow Securities or grant a security interest in their rights under this
Agreement.




          4.4 Insider Letters. Each Initial Stockholder has executed a letter
agreement with the Representative and the Company, dated as of the Effective Date, and which is
filed as an exhibit to the Registration Statement (each an “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, which counsel may be
company counsel), 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 reasonable counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any action taken by it
hereunder, 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.







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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, as set forth on Exhibit B
hereto. 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 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 and approved by the Representative, which approval will not be unreasonably
withheld, conditioned or delayed, 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.




     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. Each of the
parties hereby agrees that any action, proceeding or claim against it arising out of or relating in
any way to this Agreement shall be brought and enforced in the courts of the State of New York or
the United States District Court for the Southern District of New York, and irrevocably submits to
such personal jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby
waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient
forum.




          6.2 Entire Agreement. This Agreement and the Insider Letters contain 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. In connection with any proposed amendment, the Escrow Agent may
request an opinion of the Company’s counsel as to the validity of the proposed amendment as a
condition to its execution of said amendment.




          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.







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          6.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto and their legal representative, 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 by private national
courier service, or be mailed, certified or registered mail, return receipt requested, postage
prepaid, and shall be deemed given when so delivered personally or, if sent by private national
courier service, on the next business day after delivery to the courier, or, if mailed, two
business days after the date of mailing, as follows:



if to the Escrow Agent, to:



Continental Stock Transfer & Trust Company

17 Battery Place

New York, NY 10004

Attn: Leslie DeLuca

Fax No.: (212) 616-7620



if to the Company, to:



L&L Acquisition Corp.

265 Franklin Street, 20th Floor

Boston, MA 02110

Attn: John L. Shermyen

Fax No.: (617) 330-7759



and a copy, which shall not constitute notice, to:



Goodwin Procter LLP

The New York Times Building

620 Eighth Avenue

New York, New York 10018

Attn: Michael D. Maline, Esq.

Fax No.: (212) 355-3333



if to any Initial Stockholder, to the address set forth in Exhibit A hereto.



if the to the Underwriters, to:



Morgan Joseph & Co. Inc.,

600 Fifth Avenue, 19th Floor

New York, NY 10020

Attn: Tina Pappas

Fax No.: (212) 218-3760







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with a copy, to:



McDermott Will & Emery LLP

340 Madison Avenue

New York, New York 10173

Attn: Joel L. Rubinstein, Esq.

Fax No.: (212) 547-5444




     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; Forfeiture. The Company shall give the Escrow
Agent prompt written notification of (i) the liquidation of the Company, (ii) forfeiture of up to
an aggregate of 187,500 Escrow Shares held by the Initial Stockholders to the extent the
Underwriters’ over-allotment option is not exercised in full, as further described in the
Registration Statement or (iii) forfeiture of the Second Tranche Shares on the Second Tranche
Deadline.




          6.7 Trust Account Waiver. Notwithstanding anything herein to the contrary,
the Escrow Agent hereby waives any and all right, title, interest, demand, damages, action, causes
of action or claim of any kind whatsoever, known or unknown, foreseen or unforeseen, in law or
equity (a “Claim”) that it has or may have against the Company or in or to any distribution of the
trust account (the “Trust Account”) in which the proceeds of the initial public offering conducted
by the Company pursuant to the Prospectus (the “IPO”) and the proceeds of the sale of the Private
Warrants will be deposited and held for the benefit of the holders of the securities purchased in
the IPO, as described in greater detail in the Prospectus, and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason
whatsoever.




          6.8 Third-Party Beneficiaries. Each Initial Stockholder hereby acknowledges
that the Underwriters, including, without limitation, the Representative, are third-party
beneficiaries of this Agreement and this Agreement cannot be modified or changed without the prior
written consent of the Representative.




          6.9 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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     IN WITNESS WHEREOF, the Company has caused the execution of this Agreement as of the date
first above written.



	 	 	 	 	 
	 	L&L ACQUISITION CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CONTINENTAL STOCK TRANSFER & TRUST COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	John L. Shermyen 	 
	 
	 
	 	
John L. Shermyen

 	 



	 	 	 	 	 
	 	LLM STRUCTURED EQUITY FUND L.P.

 	 
	 	By:  	LLM Advisors L.P., its General Partner

 	 
	 	By:  	LLM Advisors LLC, its General Partner
 	 
	 	By:  	LLM Capital Partners LLC, its Manager 	 
	 
	 	By:  	
 	 
	 	 	Name:  	Frederick S. Moseley, IV 	 
	 	 	Title:  	Managing Director 	 
	 



[signatures continue on following page]



Signature Page to Securities Escrow Agreement



 









 





	 	 	 	 	 
	 	LLM INVESTORS L.P.

 	 
	 	By:  	LLM Advisors L.P., its General Partner

 	 
	 	By:  	LLM Advisors LLC, its General Partner
 	 
	 	By:  	LLM Capital Partners LLC, its Manager 	 
	 
	 	By:  	 	 
	 	 	Name:  	Frederick S. Moseley, IV 	 
	 	 	Title:  	Managing Director 	 
	 
	 
	 	 	 
	 	John A. Svahn

 	 
	 	 	 
	 	 	 
	 	E. David Hetz

 	 
	 
	 	 	 
	 	Alan W. Pettis

 	 
	 
	 	 	 
	 	
William A. Landman

 	 
	 	 	 



Signature Page to Securities Escrow Agreement



 









 











EXHIBIT A




LIST OF INITIAL STOCKHOLDERS



	 	 	 	 	 	 	 
	Name	 	First Tranche Shares	 	Second Tranche Shares	 	Warrants
	John L. Shermyen

11715 NW 122 Terrace

Alachua, Florida 32615 

Fax
No.: (386) 462-1247

	 	303,632 shares (up
to 39,604 of which
will be forfeited
if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	379,540 shares (up
to 49,505 of which
will be forfeited if
the Underwriter’s
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	LLM Structured Equity
Fund L.P.

265 Franklin Street,

20th Floor

Boston, MA 02110 

Fax No.: (617) 330-7759

	 	292,174 shares (up
to 38,110 of which
will be forfeited
if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	365,217 shares (up
to 47,637 of which
will be forfeited if
the Underwriters’
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	LLM Investors L.P. 

65 Franklin Street,

20th Floor

Boston, MA 02110

Fax No.: (617) 330-7759

	 	11,458 shares (up
to 1,495 of which
will be forfeited
if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	14,323 shares (up to
1,868 of which will
be forfeited if the
Underwriter’s
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	John A. Svahn

4790 Caughlin Parkway,
#317

Reno, Nevada 89519

Fax No.: n/a

	 	8,625 shares (up to
1,125 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	10,781 shares (up to
1,406 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	E. David Hetz 

14 Summit Avenue 

Kennebunkport, ME 04046

Fax No.: (617) 330-7759

	 	8,625 shares (up to
1,125 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	10,781 shares (up to
1,406 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	Alan W. Pettis

5 Thunderbird Drive

Newport Beach, CA 92660

Fax No.: n/a

	 	8,625 shares (up to
1,125 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	10,781 shares (up to
1,406 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 
	 	 	 	 
	William A. Landman

324 Grays Lane

Haverford, PA 19041

Fax No.: (610) 896-3083

	 	5,750 shares (up to
750 of which will
be forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)
	 	7,188 shares (up to
938 of which will be
forfeited if the
Underwriters’
over-allotment
option is not
exercised in full)









 









 






EXHIBIT B




ESCROW AGENT FEES



$2,400 annually for acting agent escrow fee.

First year agent fee to be paid at closing.