Korea Milestone Acquisition Corporation SoftForum Building, 8th Floor Gangnam, Seoul, Korea, 135-170 Broadband Capital Management New York, NY 10019 Re: Initial Public Offering Ladies and Gentlemen:
Exhibit
10.10
_________,
2008
SoftForum
Building, 8th Floor
000-0
Xxxxxxxxx
Xxxxxxx,
Xxxxx, Xxxxx, 135-170
Broadband
Capital Management
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
Re:
Initial
Public Offering
Ladies
and Gentlemen:
This
letter agreement (this “Letter
Agreement”)
is
being delivered to you in accordance with the Underwriting Agreement (the
“Underwriting
Agreement”)
entered into by and between Korea Milestone Acquisition Corporation, a
Cayman
Islands company (the “Company”),
and
Broadband Capital Management LLC, as representative of the several underwriters
(the “Underwriters”),
relating to an underwritten initial public offering (the “Offering”)
of the
Company’s units (the “Units”),
each
Unit comprised of one ordinary share of the Company, par value $0.0001
per share
(the “Ordinary
Shares”),
and
one warrant exercisable for one Ordinary Share (each, a “Warrant”).
Certain capitalized terms used herein are defined in Section 12
hereof.
In
order
to induce the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the Offering 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 Underwriters as
follows:
| 1. |
If
the Company solicits the approval of its shareholders of a Business
Combination, the undersigned will (i) vote all Initial Ordinary
Shares beneficially owned by him or it in accordance with the majority
of
the votes cast by the holders of the IPO Shares with respect to
a Business
Combination or the Extended Period and (ii) vote all IPO Shares that
may be acquired by him or it in the IPO or in the aftermarket in
favor of
a Business Combination and the Extended
Period.
|
| 2. |
In
the event that the Company fails to consummate a Business Combination
within (x) 18 months of the closing date of the IPO, (y) 24 months
of the
closing date of the IPO if the Company has not consummated a Business
Combination within 18 months of the closing date of the IPO but
has
entered into a letter of intent, memorandum of understanding, agreement
in
principle or definitive agreement with respect to a Business Combination
within such 18-month period or (z) 36 months from the closing date
of the
IPO if the Company’s shareholders approve a proposal to extend the period
of time to consummate a Business Combination by an additional 12
months
and public shareholders owning less than 30% of the shares sold
in the IPO
exercise their conversion rights, the undersigned will, as promptly
as
possible, (i) cause the Trust Account to be liquidated and distributed
to
the holders of IPO Shares and (ii) cause the Company to liquidate
as soon
as reasonably practicable. The undersigned hereby waives any and
all
right, title, interest or claim of any kind in or to any distribution
of
the Trust Account and any remaining net assets of the Company held
outside
of the Trust Account as a result of such liquidation with respect
to the
Initial Ordinary Shares beneficially owned by him. The undersigned
further
waives any and all right, title, interest or claim in or to the
Trust
Account 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 Trust Account for any reason whatsoever; provided,
however, that in the event that the Company fails to consummate
a Business
Combination and the Trust Account is liquidated and distributed,
nothing
herein shall prevent the undersigned from participating in the
Trust
Account pro rata with the other holders of IPO Shares with respect
to any
IPO Shares purchased by the undersigned as part of the IPO or in
the
aftermarket. In the event of the liquidation of the Trust Account,
the
undersigned agrees to indemnify and hold harmless the Company,
pro rata
based on the undersigned’s beneficial ownership of the Initial Ordinary
Shares, against any and all loss, liability, claims, 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) which the Company may become subject as a result of
any claim
by any vendor or other person or entity who is owed money by the
Company
for services rendered or contracted for, products sold or contracted
for,
or by any target business, but only to the extent necessary to
ensure that
such loss, liability, claim, damage or expense does not reduce
the amount
of funds in the Trust Account; provided that such indemnity shall
not
apply (i) if such vendor, person or entity or prospective target
business
executed an agreement waiving any claims against the Trust Account
(even
if such waiver is subsequently found to be invalid or unenforceable),
or
(ii) as to any claims under the Company’s obligation to indemnify the
Underwriters against certain liabilities, including liabilities
under the
Securities Act of 1933, as amended (the “Securities Act”). The undersigned
acknowledges and agrees that there will be no distribution from
the Trust
Account with respect to any warrants or Sponsors’ Warrants, all rights of
which will terminate upon the Company’s liquidation.
|
| 3. |
The
undersigned hereby (a) waives the undersigned’s right to exercise
redemption rights with respect to any Ordinary Shares owned or
to be owned
by the undersigned, directly or indirectly, and (b) agrees that
the
undersigned will not seek redemption with respect to such Ordinary
Shares
in connection with any vote to approve (i) the Extended Period,
or (ii) a
Business Combination.
|
| 4. |
The
undersigned hereby agrees and consents to (i) escrow all of the
undersigned’s Initial Ordinary Shares until one (1) year after the date of
the consummation of a Business Combination, subject to the terms
of an
Escrow Agreement, which the Company will enter into with the undersigned
and an escrow agent acceptable to the Company, and (ii) execute
said
Escrow Agreement, in a form acceptable to the Company.
|
| 5. |
(a)Subject
to the pre-existing fiduciary duties of the undersigned, the undersigned
agrees that, from the date of the Prospectus until the earliest
of the
Company’s consummation of its initial Business Combination, the Company’s
liquidation, or until such time as the undersigned ceases to be
an
executive officer or director (as applicable), the undersigned
will, and
will cause companies or entities under the undersigned’s control to offer
to the Company, before pursuing for himself or offering to others,
any
business combination opportunity presented to the undersigned with
a
target business (i) that has a fair market value between $79.2
million and
$400 million, (ii) whose primary operations are located in the
Republic of
Korea, and (iii) where the opportunity is to acquire at least a
controlling interest in the target business (which would be at
least a
majority of the voting securities of the target business and/or
control
through contractual arrangements of the target business or the
majority of
any governing body of the target business). Subject to the pre-existing
fiduciary duties of the undersigned, the undersigned has agreed
that the
undersigned will not, and will cause each other company or entity
under
the undersigned’s control not to, pursue any such business opportunity
other than on the Company’s behalf unless and until the Company’s board of
directors, including a majority of the Company’s disinterested independent
directors, has determined that the Company will not pursue such
opportunity.
|
(b) The
undersigned agrees that the undersigned will not organize or become involved
in
any other blank check company with a focus on acquiring a target business
in
Korea until the Company has entered into a definitive agreement regarding
its
initial Business Combination and filed a Report of Foreign Private Issuer
on
Form 6-K relating to the initial Business Combination, it being agreed
and
understood that the undersigned may, however, organize or become involved
in
other blank check companies with a focus other than acquiring a target
business
in Korea.
| 6. |
The
undersigned agrees to serve as a member of the Board of Directors
of the
Company until the earlier of the consummation by the Company of
its
initial Business Combination or the liquidation of the Company;
provided,
however,
that nothing herein shall be construed as providing a right of
the
undersigned to maintain any position if removed by proper corporate
action. The undersigned’s biographical information furnished to the
Company and the Underwriters and attached hereto as Exhibit
A
is
true and accurate in all material respects, does not omit any material
information with respect to the undersigned’s background and contains all
of the information required to be disclosed pursuant to Section
401 of
Regulation S-K, promulgated under the Securities Act of 1933, as
amended.
The undersigned’s completed questionnaires furnished to the Company and
the Underwriters and attached hereto as Exhibit
B
are true and accurate in all material respects.
|
2
| 7. |
The
undersigned represents and warrants that the
undersigned:
|
(a) 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;
(b) has
never
been convicted of or pleaded guilty to any crime (i) involving any fraud
or (ii)
relating to any financial transaction or handling of funds of another person
or
entity, or (iii) pertaining to any dealings in any securities and the
undersigned is not currently a defendant in any such criminal proceeding;
and
(c) has
never
been suspended or expelled from membership in any securities or commodities
exchange or association or had a securities or commodities license or
registrations denied, suspended or revoked.
| 8. |
The
undersigned acknowledges and agrees that the Company will not consummate
any Business Combination with any entity that is affiliated with
any of
the Company’s officers, directors or Existing Shareholders, unless the
Company obtains an opinion from an independent investment banking
firm
indicating that the Business Combination is fair to the Company’s Public
Shareholders from a financial
perspective.
|
| 9. |
Except
as disclosed in the Prospectus, neither the undersigned nor any
family
member or affiliate of the undersigned will be entitled to receive,
and no
such person or entity will accept, any compensation, fee (finder’s or
otherwise), reimbursement or payment (a) from the Company for services
rendered to the Company prior to or in connection with the consummation
of
a Business Combination, other than reimbursement from the Company
for the
undersigned’s reasonable out-of-pocket expenses related to identifying,
investigating and consummating a Business Combination, or (b) in
the event
that the undersigned or any family member or affiliate of the undersigned
originates a Business Combination.
|
| 10. |
The
undersigned has full right and power, without violating any agreement
by
which the undersigned is bound (including, without limitation,
any
non-competition or non-solicitation agreement), to enter into this
Letter
Agreement and to serve as an officer, director and shareholder
of the
Company. The undersigned hereby consents to being named in the
Prospectus
(as determined by the Company).
|
| 11. |
The
undersigned agrees that until the consummation of a Business Combination,
the undersigned will not recommend or take any action to amend
or waive
any provisions of Article
[49] of the Company’s amended and restated memorandum and articles of
association.
|
| 12. |
As
used herein, (a) a “Business
Combination”
shall mean the Company’s initial acquisition of, or acquisition of control
of, one or more operating businesses, through a merger, stock exchange,
stock purchase, asset acquisition, reorganization or other similar
business combination, or contractual arrangements, having an aggregate
fair market value of at least eighty percent (80%) of the balance
held in
the Trust Account (less the amount held in the Trust Account representing
the deferred underwriting discounts and commissions and taxes payable,
but
including any amounts paid to redeeming shareholders in connection
with
the approval of any proposed extension) at the time of the execution
of a
definitive agreement for the Business Combination; (b) “Existing
Shareholders”
shall mean the officers, directors and shareholders of the Company
prior
to the Offering; (c) “Initial
Ordinary Shares”
shall mean all of the Ordinary Shares owned by an Existing Shareholder
prior to the Offering (and shall include any Ordinary Shares issued
as
dividends with respect to such shares); (d) “Public
Shareholders”
shall mean the holders of securities issued in the Offering; (e)
“Trust
Account”
shall mean the trust account established for the benefit of the
Public
Shareholders into which a portion of the net proceeds of the Offering
will
be deposited; and (f) the “Extended
Period”
shall mean the additional 12-month period to approve a Business
Combination as more specifically described in the Registration
Statement.
|
3
| 13. |
The
undersigned acknowledges and understands that the Company will
rely upon
the agreements, representations and warranties set forth herein
in
proceeding with the Offering. Nothing contained herein shall be
deemed to
render the Underwriters a representative of, or a fiduciary with
respect
to, the Company, its shareholders, or any creditor or vendor of
the
Company with respect to the subject matter
hereof.
|
| 14. |
The
undersigned hereby agrees to take, or cause to be taken, all actions
(including, without limitation, executing all agreements and documents)
and to do, or cause to be done, all things necessary, proper or
advisable
to fulfill the undersigned’s obligations under this Letter Agreement, or
as may otherwise be requested or required of the undersigned by
the
Company.
|
| 15. |
This
Letter Agreement constitutes the entire agreement and understanding
of the
parties hereto in respect of its subject matter 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 Letter
Agreement may not be amended, modified or waived as to any particular
provision, except by a written instrument executed by all parties
hereto.
No party hereto may assign either this Letter Agreement or any
of its
rights, interests, or obligations hereunder without the prior written
approval of the other parties hereto. Any purported assignment
in
violation of this Section 16 shall be void and ineffectual and
shall not
operate to transfer or assign any interest or title to the purported
assignee. This Letter Agreement, the entire relationship of the
parties
hereto, and any litigation between the parties (whether grounded
in
contract, tort, statute, law or equity) shall be governed by, construed
in
accordance with, and interpreted pursuant to the laws of the State
of New
York, without giving effect to its choice of laws principles. The
undersigned hereby agrees that any action, proceeding or claim
against the
undersigned 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. The undersigned
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. The undersigned hereby agrees to appoint an agent
for
the service of process in the State of New York, which such agent
shall be
reasonably acceptable to the Company and Broadband Capital Management
("Broadband"),
to receive, for the undersigned and on the undersigned's behalf,
service
of process in any proceeding. If for any reason such agent is unable
to
act as such, the undersigned will promptly (i) notify the Company
and
Broadband and (ii) appoint a substitute agent reasonably acceptable
to
each of the Company and Broadband, and nothing in this Letter Agreement
will affect the right of either party to serve process in any other
manner
permitted by law. This
Letter Agreement shall be binding on the undersigned and the undersigned’s
respective heirs, personal representatives, successors and assigns.
This
Letter Agreement shall terminate on the earlier of (a) the expiration
of
the longest lock-up period applicable to the undersigned’s Initial
Ordinary Shares and (b) the liquidation of the Company; provided
that such
termination shall not relieve the undersigned from liability for
any
breach of this Letter Agreement prior to its
termination.
|
| Sincerely, | ||
| |
|
|
|
Jhong Xxx Xxx |
||
4
| Accepted and agreed: | ||||
| KOREA MILESTONE ACQUISITION CORPORATION | ||||
| By: | ||||
|
Name:
Title:
|
||||
| BROADBAND CAPITAL MANAGEMENT LLC | ||||
| By: | ||||
|
Name:
Title:
|
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5
EXHIBIT
A
BIOGRAPHICAL
INFORMATION FURNISHED TO THE COMPANY
EXHIBIT
B
QUESTIONNAIRES
