Greenstreet Acquisition Corp. Coconut Grove, Florida 33133 and Credit Suisse Securities (USA) LLC Eleven Madison Avenue New York, New York 10010-3629 Re: INITIAL PUBLIC OFFERING Ladies and Gentlemen:
____________,
2008
Xxxxxxxxxxx
Acquisition Corp.
0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Coconut
Grove, Florida 33133
and
Credit
Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
New
York,
New York 10010-3629
Re: INITIAL
PUBLIC OFFERING
Ladies
and Gentlemen:
This
letter is being delivered to you in accordance with the Underwriting Agreement
(the “Underwriting
Agreement”)
proposed to be entered into by and between Xxxxxxxxxxx Acquisition Corp., a
Delaware corporation (the “Company”)
and
Credit Suisse Securities (USA) LLC (“Credit
Suisse”)
acting
as underwriter (the “Underwriter”),
relating to an underwritten initial public offering (the “IPO”)
of the
Company’s units (the “Units”),
each
Unit comprised of one share of the Company’s Common Stock, par value $0.001 per
share (the “Common
Stock”),
and
one warrant, which is exercisable for one share of Common Stock. Certain
capitalized terms used herein are defined in paragraph 11 hereof.
In
order
to induce the Company and the Underwriter to enter into the Underwriting
Agreement and to proceed with the IPO, and in recognition of the benefit that
such IPO will confer upon the undersigned as a stockholder of the Company,
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby agrees with the Company and
the
Underwriter as follows:
1. If
the
Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote (i) all Founder Shares owned by the undersigned in
accordance with the majority of the votes cast by the holders of the IPO Shares
and (ii) all shares of Common Stock that the undersigned has acquired in the
IPO
or in the open market in favor of such Business Combination and in favor of
an
amendment to the Amended and Restated Certificate of Incorporation of the
Company to provide for the Company’s perpetual existence. The undersigned will
not vote in favor of any amendment to Articles Fifth and Sixth of the Amended
and Restated Certificate of Incorporation of the Company proposed to be filed
with the Secretary of State of the State of Delaware on the Effective
Date.
2. In
the
event that the Company fails to consummate a Business Combination within twenty
four (24) months from the effective date (the “Effective
Date”)
of the
Registration Statement, the undersigned will take all reasonable actions within
the undersigned’s power to (i) cause the Trust Account to be liquidated and
distributed to the holders of IPO Shares in accordance with that Investment
Management Trust Agreement to be entered into by and between the Company and
American Stock Transfer & Trust Company, as Trustee (the “Trust
Agreement”);
and
(ii) cause the Company to liquidate as soon as reasonably practicable. The
undersigned agrees that in connection with any cessation of the corporate
existence of the Company, it will take all reasonable steps to cause the Company
to adopt a plan of distribution in accordance with Section 281(b) of the General
Corporation Law of the State of Delaware or any successor provision thereto.
The
undersigned hereby waives any and all right, title, interest or claim of any
kind (each a “Claim”)
in or
to (x) any distribution of the Trust Account with respect to the undersigned’s
Founder Shares in connection with a liquidation and (y) any remaining net assets
of the Company after such liquidation. The undersigned hereby waives any Claim
the undersigned may have in the future as a result of, or arising out of, any
contracts or agreements with the Company and will not seek recourse against
the
funds held in or distributed from the Trust Account for any reason.
Notwithstanding the foregoing, the undersigned shall be entitled to seek
recourse against the Trust Account and any other property of the Company to
enforce the Company’s indemnification obligations to the undersigned, as set
forth in the Certificate of Incorporation of the Company, as such certificate
may be amended from time to time. The undersigned acknowledges and agrees that
there will be no distribution from the Trust Account with respect to any
warrants, all rights of which will terminate on the Company’s liquidation.
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3. Except
as
disclosed in the Registration Statement, none of the undersigned, any member
of
the family of the undersigned, nor any Affiliate of the undersigned will be
entitled to receive and will not accept any compensation for services rendered
to the Company prior to or in connection with the consummation of the Business
Combination; provided, that the undersigned shall be entitled to reimbursement
from the Company upon approval by the Company’s Audit Committee for the
undersigned’s reasonable out-of-pocket expenses incurred in connection with
seeking and consummating a Business Combination.
4. None
of
the undersigned, any member of the family of the undersigned, nor any Affiliate
of the undersigned will be entitled to receive or accept from the Company a
finder’s fee, broker commission or any other compensation in the event the
undersigned, any member of the family of the undersigned or any Affiliate of
the
undersigned originates a Business Combination.
5. The
undersigned shall escrow the undersigned’s Founder Shares and Sponsor Warrants,
in accordance with the terms of a Securities Escrow Agreement which the Company
will enter into with the undersigned and American Stock Transfer & Trust
Company, as escrow agent, in form and substance acceptable to the
Company.
6. With
respect to the undersigned, the information in the Registration Statement is
true and accurate in all respects and does not omit any material information
with respect to the undersigned. The undersigned agrees to be of the Company
and
currently intends to serve until the earlier of the consummation by the Company
of a Business Combination or the liquidation of the Company. The undersigned’s
Questionnaire for Directors and Officers furnished to the Company and attached
hereto as Exhibit
A
and the
undersigned’s biographical information in the Registration Statement is true and
accurate in all respects and does not omit any material information with respect
to the undersigned’s background. The undersigned represents and warrants
that:
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6.1 the
undersigned is not subject to, or a respondent in, any legal action for any
injunction, cease-and-desist order or order or stipulation to desist or refrain
from any act or practice relating to the offering of securities in any
jurisdiction;
6.2 the
undersigned has never been convicted of or pleaded guilty to any crime (i)
involving any fraud; (ii) relating to any financial transaction or handling
of
funds of another person; (iii) pertaining to any dealings in any securities;
or
(iv) moral turpitude, and the undersigned is not currently a defendant in any
such criminal proceeding;
6.3 the
undersigned has never been suspended or expelled from membership in any
securities or commodities exchange or association or had a securities or
commodities license or registration denied, suspended or revoked;
6.4 a
petition under any federal bankruptcy laws or any state insolvency law was
not
filed by or against, nor was a receiver fiscal agent or similar officer
appointed by a court for the business or property of the undersigned, or for
any
partnership in which the undersigned was a general partner, in each case within
the past ten years or for any corporation or business association of which
the
undersigned was an executive officer within the past ten years;
6.5 the
undersigned has not been subject to any order prohibiting and is not subject
to
any legal proceeding seeking to prohibit the undersigned from engaging in any
type of business practice;
6.6 the
undersigned has not been found by a court of competent jurisdiction in a civil
action by the Securities and Exchange Commission or by any other federal or
state administrative or regulatory authority to have violated any federal or
state securities law;
6.7 the
undersigned has not been found by a court of competent jurisdiction in a civil
action by the Commodity Futures Trading Commission or by any other federal
or
state administrative or regulatory authority to have violated any federal or
state commodities law; and
6.8 the
Company will not consummate any Business Combination that involves a target
acquisition which is affiliated with any of the directors, officers or
Affiliates of the Company or with which the undersigned has had any discussions,
formal or otherwise, with respect to a Business Combination prior to the
consummation of the IPO.
7. This
letter agreement shall be binding on the Company and the undersigned and the
undersigned’s respective successors, heirs, personal representatives and
assigns. This letter agreement shall terminate on the earlier of (i) the date
upon which the Business Combination is consummated and (ii) the date upon which
the liquidation and distribution of the Trust Account is completed, provided
that the following Sections shall survive such termination: 3, 4, 5, 11, 12,
13,
14 and 15.
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8. The
undersigned agrees that, in order to minimize potential conflicts of interest
which may arise from multiple corporate affiliations, from the consummation
of
the IPO until the earliest of the consummation of a Business Combination,
liquidation of the Company and such time as the undersigned ceases to be a
director or officer of the Company, (i) the undersigned shall present to the
Company for its consideration prior to presentation to any other entity, any
business opportunity that has an aggregate fair market value of $500 million
or
more, subject to the undersigned’s pre-existing fiduciary or contractual
obligations and (ii) the undersigned shall not assist or participate with any
other person or entity in the pursuit of or negotiation with respect to a
business opportunity described in clause (i) unless and until it receives prior
written notice from the Company that the Company has determined not to pursue
such business opportunity; provided that the foregoing shall not apply to any
real estate opportunities, any opportunities in the locomotive or railcar
leasing industries and any opportunities in the dry bulk ocean transportation,
inland marine transportation and bulk-storage and transfer terminal industries;
provided, further, that the undersigned shall have no obligation to present
any
real estate opportunities, any opportunities in the locomotive or railcar
leasing industries or any opportunities in the dry bulk ocean transportation,
inland marine transportation and bulk-storage and transfer terminal industries
to the Company.
9. The
undersigned authorized any employer, financial institution or consumer credit
reporting agency to release to the Company, Credit Suisse and their respective
legal representatives or agents (including any investigative search firm
retained by any of the foregoing), any information he or it may have about
the
undersigned’s background and finances for the purposes of such party’s
participation in the IPO.
10. The
undersigned agrees not to participate in the formation of, or become an officer
or director of, any other blank check company until the earliest of (i) the
liquidation of the Company, (ii) the execution of a letter intent, agreement
in
principle or definitive agreement regarding a Business Combination, and (iii)
such time as the undersigned ceases to be an officer or director of the
Company.
11. Reference
is made to the lock-up agreement letter to be entered into by and among the
undersigned and the Underwriter, and the undersigned covenants and undertakes
to
the Company to comply with the terms thereof as if the Company were a party
thereto.
12. This
letter agreement shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contracts executed in and to be
performed in that State, including, without limitation, Sections 5-1401 and
5-1402 of the New York General Obligations Law and the New York Civil Practice
Laws and Rules 327(b). Each of the Company and the undersigned hereby (i) agrees
that any action, proceeding or claim against him or it arising out of or
relating in any way to this letter 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 jurisdiction,
which jurisdiction shall be exclusive and (ii) waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenient
forum.
13. Each
party hereto hereby irrevocably and unconditionally waives the right to a trial
by jury in any action, suit, counterclaim or other proceeding (whether based
on
contract, tort or otherwise) arising out of, connected with or relating to
this
letter agreement.
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14. As
used
herein:
14.1 “Affiliate”
shall
have the meaning ascribed to it in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
14.2. “Business
Combination”
shall
have the meaning set forth in the Registration Statement.
14.3 “Founder
Shares”
shall
mean all of the shares of Common Stock of the Company issued prior to the
IPO.
14.4 “IPO
Shares”
shall
mean the shares of Common Stock comprising the Units issued in the Company’s
IPO.
14.5 “Registration
Statement”
shall
mean the registration statement to be filed by the Company on Form S-1 with
the
Securities and Exchange Commission, and any amendment or supplement thereto,
in
connection with the IPO.
14.6 “Sponsor
Warrants”
shall
mean the warrants to be purchased by the undersigned immediately prior to and
subject to the consummation of the Company’s IPO, as set forth in that certain
Sponsor Warrant Subscription Agreement, dated as of January 14, 2008, by and
between the Company and the undersigned.
14.7 “Trust
Account”
shall
mean the trust account established pursuant to the Trust Agreement, the amounts
therein to be released only in the event of the consummation of a Business
Combination, a liquidation of the Company or as otherwise permitted by the
Trust
Agreement.
15. No
term
or provision of this letter agreement may be amended, changed, waived altered
or
modified except by written instrument executed and delivered by the undersigned,
the Company and Credit Suisse.
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Sincerely,
_____________________________________
Accepted
and agreed:
XXXXXXXXXXX
ACQUISITION CORP.
By:
_________________________________
Name:
Title:
[Insider
Letter]
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