Contract
Exhibit 10.10
THIS TRUST INDEMNIFICATION AGREEMENT (this “Agreement”), dated as of April __, 2017 is made and entered into by and between Committed Capital Acquisition Corporation II, a Delaware corporation (the “Company”) and Notespac, LLC (the “Indemnitor”).
RECITALS
WHEREAS, the Company, which consummated its initial public offering on April 16, 2014 pursuant to a registration statement on Form S-1, No. 333-192586 (the “Offering”), is a blank check company whose purpose is to acquire, through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, exchangeable stock transaction or other similar business transaction (a “Business Transaction”), one or more operating businesses or assets;
WHEREAS, the gross proceeds of the Offering were deposited in a trust account (the “Trust Account”) at X.X. Xxxxxx Xxxxx Bank, N.A. and managed by Continental Stock Transfer & Trust Company, as trustee, as described in the registration statement and prospectus from the Offering;
WHEREAS, it is contemplated that KASPAC, LLC and KSSPAC, LLC will purchase from Xxxxxxx Xxxxxxxx (“Xxxx”), Xxxxxx Xxxxxxxxx and Committed Capital Holdings LLC (“Holdings”) certain of the Company’s founder shares owned by Messrs. Xxxx and Xxxxxxxxx and Holdings (the “Purchase”); and
WHEREAS, Indemnitor desires to enter into this Agreement in order to facilitate the Purchase and the other transactions contemplated thereby.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Subject to the fulfillment of the conditions set forth in Section 8 hereof, in the event of the liquidation of the Trust Account without the consummation of an initial Business Transaction, Indemnitor agrees to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has entered into an acquisition agreement (a “Target”); provided, however, that such indemnification of the Company shall apply only to the extent necessary to ensure that such claims by a third party for services rendered (other than the Company’s independent public accountants) or products sold to the Company or a Target do not reduce the amount of funds in the Trust Account below $5.00 per share of the Common Stock sold in the Offering, and, provided, further, that such indemnification of the Company by the Indemnitors shall apply only if such third party or Target has not executed an agreement waiving claims against all rights to seek access to the Trust Account, whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by Indemnitor shall not apply as to any claims under the Company’s obligation to indemnify the underwriters of the Offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended. Indemnitor shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the undersigned, the undersigned notifies the Company in writing that the Indemnitors shall undertake such defense.
2. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
3. No party may assign either this Agreement or any of his, her or its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and each of his or its heirs, personal representatives, successors and assigns.
4. 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 parities hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waives any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
5. Any notice, statement or demand authorized by this Agreement shall be sufficiently given (i) when so delivered if by hand or overnight delivery, (ii) the date and time shown on a telefacsimile transmission confirmation, or (ii) if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid. Such notice, statement or demand shall be addressed as follows:
If to the Company:
Committed Capital Acquisition Corporation II
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
Fax No.: (000) 000-0000
If to the Indemnitor:
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Email: xxxxxx@xxxxxxxxxxxxxxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxx LLP.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
with a copy in each case (which shall not constitute notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
6. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
7. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
8. This Agreement shall only become effective upon the consummation of the Purchase, and the terms hereof shall be null and void and shall not be enforceable by the Company against the Indemnitor in any respect if the Purchase is not consummated on or before May 15, 2017. The obligations of the Indemnitor in this Agreement shall be strictly limited to any and all loss, liability, claim, damage and expense whatsoever including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which the Company may become subject during the period beginning upon the approval by the Company’s stockholders of the Extension Amendment and ending upon the completion of the Second Redemption (as such terms are defined in the Company’s proxy solicitation materials attached as Exhibit 99.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on March 30, 2017) (the “Agreement Period”), but only to the extent such loss, liability, claim, damage and expense are based upon or arise from any action, transaction state of facts or circumstances that occur during, but only during, the Agreement Period.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| COMMITTED CAPITAL ACQUISITION CORPORATION, a Delaware corporation | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx Title: Chairman and CEO |
||
| NOTESPAC, LLC | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx Title: Managing Member |
||
