EX-10.4






Exhibit 10.4




SECURITIES ESCROW AGREEMENT





     SECURITIES ESCROW AGREEMENT, dated as of
                    , 2008 (“Agreement”), by and among
GABELLI ENTERTAINMENT & TELECOMMUNICATIONS ACQUISITION CORP., a Delaware corporation (“Company”),
GABELLI ACQUISITION, LLC, FREDERIC V. SALERNO, MARIO J. GABELLI, CHRISTOPHER J.
MARANGI, LAWRENCE J. HAVERTY, JR.,  EUGENE R.
McGRATH, ALFRED W. FIORE, ROBERT FRIEDMAN and VINCENT TESE (collectively “Initial
Stockholders”) and AMERICAN STOCK TRANSFER &
TRUST COMPANY, a New York corporation (“Escrow Agent”).




     WHEREAS, the Company has entered into an Underwriting Agreement, dated
                    , 2008
(“Underwriting Agreement”), with Citigroup
Global Markets Inc. (“Citigroup”) acting as
representative of the several underwriters (collectively, the “Underwriters”), pursuant to which,
among other matters, the Underwriters have agreed to purchase
12,500,000 units (“Units”) of the
Company, plus up to an additional 1,875,000 Units pursuant to an over-allotment option granted to
the Underwriters. Each Unit consists of one share of the Company’s common stock, par value $.0001
per share (“Common Stock”), and one warrant (“Warrant”) to purchase one share of Common Stock, all
as more fully described in the Company’s final Prospectus, dated                     , 2008 (“Prospectus”)
comprising part of the Company’s Registration Statement on Form S-1 (File No. 333-152758) under the
Securities Act of 1933, as amended (“Registration Statement”), declared effective on                     , 2008
(“Effective Date”).



     WHEREAS, the Initial Stockholders have agreed as a condition of the sale of the Units to
deposit their Units of the Company, as set forth opposite their respective names in Exhibit A
attached hereto (collectively “Escrow Securities”), in escrow as hereinafter provided.



     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, each of the Initial
Stockholders shall deliver to the Escrow Agent certificates representing his respective Escrow
Securities, to be held and disbursed subject to the terms and conditions of this Agreement. Each
Initial Stockholder acknowledges that the certificate representing his Escrow Securities is
legended to reflect the deposit of such Escrow Securities under this Agreement.



     3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Escrow
Securities until the date that is one year after the consummation of a Business Combination (as
defined in the Company’s amended and restated certificate of incorporation) (“Escrow Period”), on
which date it shall, upon written instructions from each Initial Stockholder and/or counsel to the
Company, disburse each of the Initial Stockholder’s Escrow Securities (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 Securities held pursuant to this agreement; provided, further, that if the Underwriters do
not exercise their over-allotment option to purchase an additional
1,875,000 Units of the Company
(as described in the Prospectus) in full, the Initial Stockholders agree that no later than by the
end of the 45-day period in which the Underwriters may



 









 







exercise their over-allotment option, the Company shall give the Escrow Agent written notice
with respect to the amount, if any, of the over-allotment that was exercised by the Underwriters
and, upon such notice, the Escrow Agent shall return to the Company for cancellation, at no cost,
the number of Escrow Securities and Escrow Warrants held by each Initial Stockholder determined by
multiplying (a) the product of (i) 468,750, multiplied by (ii) a fraction, (x) the numerator of
which is the number of Escrow Securities held by each Initial Stockholder, and (y) the denominator
of which is the total number of Escrow Securities, by (b) a fraction, (i) the numerator of which is
1,875,000 minus the number of Units purchased by the Underwriters upon the exercise of their
over-allotment option, and (ii) the denominator of which is
1,875,000; provided further, however,
that if, after the Company consummates a Business Combination (as such term is defined in the
Company’s amended and restated certificate of incorporation), (i) 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 or (ii) the last sales price of the Common
Stock equals or exceeds $13.25 per share for any 20 trading days within any 30-trading day period
after the consummation of the Business Combination, then the Escrow Agent will, upon receipt of a
certificate, executed by the Chairman of the Board, President or other authorized officer of the
Company, in form reasonably acceptable to the Escrow Agent, that such transaction is then being
consummated or such conditions have been achieved, as applicable, release the Escrow Securities to
the Initial Stockholders. 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 Stockholders 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, 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 Securities. During the
Escrow Period, all dividends payable in cash with respect to the Escrow Securities 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 Securities” 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 Securities will be transfers (i) to the Company’s officers and directors, (ii) to an
entity’s members upon its liquidation, (iii) by bona fide gift to a member of an 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 for estate planning purposes, (iv) by virtue
of the laws of descent and distribution upon death of any Initial Stockholder, (v) pursuant to a
qualified domestic relations order or (vi) by private sales made at or prior to the consummation of
a Business Combination at prices no greater than the price at which the Escrow Securities were
originally purchased; 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
Securities.




          4.4 Insider Letters. Each of the Initial Stockholders has executed a letter agreement
with Citigroup 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.




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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 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.




          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 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, 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.




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          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.




          5.8 Waiver. The Escrow Agent hereby waives any and all right, title, interest or
claim of any kind (each, a “Claim”) in or to any distribution of the Trust Account (as defined in
the Investment Management Trust Agreement dated as of the date hereof by and between the Company
and the Escrow Agent, as trustee thereunder) 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 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 Underwriters are third party beneficiaries of this Agreement and this Agreement may not be
modified or changed without the prior written consent of Citigroup.




          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 the 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 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:



Gabelli Entertainment & Telecommunications Acquisition Corp.

140 Greenwich Avenue

Greenwich, Connecticut 06830

Attn: Mario J. Gabelli




          If to a Stockholder, to his address set forth in Exhibit A.



and if to the Escrow Agent, to:



American Stock Transfer & Trust Company

59 Maiden Lane




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New York, New York 10038

Attn: George Karfunkel



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



Graubard Miller

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

Attn: David Alan Miller, Esq.



and:



Citigroup
Global Markets Inc.

388 Greenwich St.

New York, New York 10013

Attn: David Spivak



and:



Greenberg Traurig, LLP

Met Life Building

200 Park Avenue

New York, New York 10166

Attn: Alan I. Annex, 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 the 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 may be delivered by facsimile transmission and each of which shall constitute an original,
and together shall constitute but 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.



	 	 	 	 	 
	 	GABELLI ENTERTAINMENT & TELECOMMUNICATIONS ACQUISITION CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	INITIAL STOCKHOLDERS:



GABELLI ACQUISITION, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 	 
	 	 	FREDERIC V. SALERNO 	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	MARIO J. GABELLI 	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	CHRISTOPHER J. MARANGI 	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	LAWRENCE J. HAVERTY, JR. 	 
	 
	 
	 	 	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	EUGENE R. MCGRATH	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	ALFRED W. FIORE	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	ROBERT FRIEDMAN	 
	 	 	 
	 
	 	 	 
	 	 	 	 
	 	 	VINCENT TESE	 
	 	 	 
	 
	 	AMERICAN STOCK TRANSFER & TRUST COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Number	 	Unit	 	Date of
	Name and Address of Initial Stockholder	 	of Escrow Securities	 	Certificate Number	 	Insider Letter
	Gabelli Acquisition, LLC
	 	 	2,812,500	 	 	 	1	 	 	 	                    , 2008	 
	140 Greenwich Avenue 

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Frederic V. Salerno
	 	 	375,000	 	 	 	2	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications
Acquisition Corp. 

140 Greenwich Avenue 

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Mario J. Gabelli
	 	 	125,000	 	 	 	3	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications
Acquisition Corp. 

140 Greenwich Avenue 

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Christopher J. Marangi
	 	 	125,000	 	 	 	4	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp. 

140 Greenwich Avenue 

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Lawrence J. Haverty
	 	 	31,250	 	 	 	5	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp. 

140 Greenwich Avenue 

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Eugene R. McGrath
	 	 	31,250	 	 	 	6	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp.

140 Greenwich Avenue

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Alfred W. Fiore
	 	 	31,250	 	 	 	7	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp.

140 Greenwich Avenue

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Robert Friedman
	 	 	31,250	 	 	 	8	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp.

140 Greenwich Avenue

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 
	Vincent Tese
	 	 	31,250	 	 	 	9	 	 	 	                    , 2008	 
	c/o Gabelli Entertainment &

Telecommunications Acquisition Corp.

140 Greenwich Avenue

Greenwich, Connecticut 06830
	 	 	 	 	 	 	 	 	 	 	 	 








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