EXHIBIT 10.1
FORM OF LETTER AGREEMENT WITH XXXXXX X. XXXXX
November ____, 2005
Harbor Acquisition Corporation
Xxx Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: INITIAL PUBLIC OFFERING
Gentlemen:
The undersigned officer and director and stockholder of Harbor Acquisition
Corporation ("COMPANY"), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated
("FBW") entering into a letter of intent ("LETTER OF INTENT") to underwrite an
initial public offering of the securities of the Company ("IPO") and embarking
on the IPO process, hereby agrees as follows (certain capitalized terms used
herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business
Combination, the undersigned will vote all shares of Company stock, including
Insider Shares, IPO Shares and other shares of Common Stock of the Company owned
by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after
the consummation of a Business Combination subject to the terms of a Stock
Escrow Agreement which the Company will enter into with the undersigned and an
escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination
within 18 months from the effective date ("EFFECTIVE DATE") of the registration
statement relating to the IPO (or 24 months under the circumstances described in
the prospectus relating to the IPO), the undersigned will take all reasonable
actions within his power to 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 ("CLAIM") in or to any distribution of the Trust Fund (as
defined in the Letter of Intent) with respect to his Insider Shares and 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 Trust Fund for any reason whatsoever. The undersigned agrees to
indemnify and hold harmless the Company 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 to as a result of any claim by
any vendor that is owed money by the Company for services rendered or products
sold but only to the extent necessary to ensure that such loss, liability,
claim, damage or expenses does not reduce the amount in the Trust Fund.
4. In order to minimize potential conflicts of interest which may arise
from multiple affiliations, the undersigned agrees to present to the Company for
its consideration, prior to presentation to any other person or entity, any
suitable opportunity to acquire an operating business, until the earlier of the
consummation by the Company of a Business Combination, the liquidation of the
Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the
undersigned might have, including, but not limited to, the undersigned's
obligation to present business opportunities to the companies listed in EXHIBIT
A.
5. The undersigned acknowledges and agrees that the Company will not
consummate any Business Combination which involves a company which is affiliated
with any of the Insiders unless the Company obtains an
opinion from an independent investment banking firm reasonably acceptable to FBW
that the business combination is fair to the Company's stockholders from a
financial perspective.
6. Neither the undersigned, any member of the family of the undersigned,
or any affiliate of the undersigned will be entitled to receive or accept a
finder's fee 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.
7. The undersigned agrees to be Chief Executive Officer, Chairman of the
Board of Directors and Treasurer of the Company until the earlier of the
consummation by the Company of a Business Combination or the liquidation of
the Company. The undersigned's biographical information furnished to the
Company and FBW and attached hereto as EXHIBIT A is true and accurate in all
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. The undersigned's Questionnaire furnished to the
Company and FBW and annexed as EXHIBIt B hereto is true and accurate in all
respects. The undersigned represents and warrants that:
(a) he 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) he 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 (iii)
pertaining to any dealings in any securities and he is not
currently a defendant in any such criminal proceeding; and
(c) he 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.
8. The undersigned has full right and power, without violating any
agreement by which he is bound, to enter into this letter
agreement and to serve as Chief Executive Officer, Chairman of
the Board of Directors and Treasurer of the Company.
9. Neither 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 the consummation of the
Business Combination; provided that commencing on the
Effective Date, Grand Cru Management, LLC ("RELATED PARTY"),
shall be allowed to charge the Company an allocable share of
Related Party's overhead, $7,500.00 per month, to compensate
it for certain limited administrative, technology and
secretarial services, as well as the use of certain limited
office space, including a conference room, in Boston,
Massachusetts, that it will provide to the Company. Related
Party and the undersigned shall also be entitled to
reimbursement from the Company for their out-of-pocket
expenses incurred in connection with seeking and consummating
a Business Combination.
10. The undersigned authorizes any employer, financial institution, or
consumer credit reporting agency to release to FBW and its
legal representatives or agents (including any investigative
search firm retained by FBW) any information they may have
about the undersigned's background and finances
("INFORMATION"), purely for the purposes of the Company's IPO
(and shall thereafter hold such information confidential).
Neither FBW nor its agents shall be violating the
undersigned's right of privacy in any manner in requesting and
obtaining the Information and the undersigned hereby releases
them from liability for any damage whatsoever in that
connection.
11. As used herein, (i) a "Business Combination" shall mean an
acquisition by merger, capital stock exchange, asset or stock
acquisition, reorganization or otherwise, of an operating
business selected by the Company; (ii) "Insiders" shall mean
all officers, directors and stockholders of the Company
immediately prior to the IPO; (iii)
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"Insider Shares" shall mean all of the shares of Common Stock of the Company
owned by an Insider prior to the IPO; and (iv) "IPO Shares" shall mean the
shares of Common Stock issued in the Company's IPO.
If the foregoing terms and conditions are acceptable to you, kindly
indicate your acceptance below, whereupon this letter shall be a binding legal
agreement among us.
-----------------------------------
Xxxxxx X. Xxxxx
Accepted and agreed as aforesaid:
HARBOR ACQUISITION CORPORATION
By:
--------------------------------
Xxxxx A. R. Xxxxxx, President
XXXXXX, XXXXX XXXXX, INCORPORATED
By:
--------------------------------
Duly Authorized
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EXHIBIT A
SCHEDULE FOR XXXXXX X. XXXXX
LEGAL NAME OF ENTITY POSITION
-------------------- --------
1. Elmet Technologies, Inc. Director
2. Solar Cosmetic Labs, Inc. Director
BIOGRAPHY OF XXXXXX X. XXXXX
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EXHIBIT B
D&O QUESTIONNAIRE
SEE ATTACHED
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