Form of Letter Agreement for Directors and Officers] [Insert Date]
[Form of Letter Agreement for Directors and Officers]
[Insert Date]
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
JPMorgan Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Re: Initial Public Offering
Ladies and Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Orbit Acquisition Corp., a Delaware corporation (the “Company”) and JPMorgan Securities Inc., as representative of the several underwriters (the “Underwriters”), relating to an underwritten initial public offering (the “Offering”) of 25,000,000 of the Company’s units (the “Units”), each comprised of one share of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), and one warrant exercisable for one share of Common Stock (each, a “Warrant”). The Units sold in the Offering will be listed and traded on the American Stock Exchange pursuant to a Registration Statement on Form S-1 and prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission. Certain capitalized terms used herein are defined in paragraph [9][10] 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 [officer] [director] hereby agrees with the Company as follows:
1. [(a)] The undersigned agrees that (i) in connection with a vote to approve any proposed Initial Business Combination or an amendment to the Company’s amended and restated certificate of incorporation to provide for an Extension Period, as the case may be, the undersigned shall: [Include for independent directors only: (a) vote all shares of Founders’ Common Stock owned by the undersigned in accordance with the majority of the votes cast by
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 2
the Public Stockholders and (b)] vote any shares of Common Stock acquired by him or her in the Offering or the secondary public market in favor of any proposed Initial Business Combination or an amendment to the Company’s amended and restated certificate of incorporation to provide for an Extension Period, as the case may be, and (ii) vote all shares of Common Stock [(including Founders’ Common Stock)] owned by him or her in favor of an amendment to the Company’s amended and restated certificate of incorporation providing for the Company’s perpetual existence in connection with a vote to approve a proposed Initial Business Combination. The undersigned also acknowledges and agrees that he or she will not have any conversion rights [with respect to the shares of Founders’ Common Stock owned or] with respect to any shares of Common Stock acquired in or following the Offering by the undersigned.
[Include for independent directors only: (b) To the extent that the Underwriters do not exercise their over-allotment option to purchase an additional 3,750,000 Units of the Company (as described in the Prospectus), the undersigned agrees that he or she shall return to the Company for cancellation, at no cost, the number of Founders’ Common Stock held by the undersigned determined by multiplying [ ] by a fraction, (i) the numerator of which is 3,750,000 minus the number of shares of Common Stock purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 3,750,000.]
[Include for independent directors only: (c) The undersigned hereby waives any right, title, interest or claim of any kind in or to any distributions of the Trust Account as a result of any liquidation of the Company with respect to his or her shares of Founders’ Common Stock. The undersigned hereby waives any claim the undersigned may have in the future against the Trust Account, and will not seek recourse against the funds held in or distributed from the Trust Account prior to an Initial Business Combination, in either case on account of, or arising out of, any contracts or agreements with the Company.]
2. The undersigned [officer] [director] hereby agrees that in the event that the Company fails to consummate an Initial Business Combination within 24 months after the date of the final Prospectus relating to the Offering (or within any Extension Period), the undersigned shall take all reasonable steps to (a) cause the Trust Account to be liquidated and distributed to the holders of Common Stock purchased in the Offering as soon as reasonably practicable and (b) cause the Company to be dissolved and liquidated as soon as reasonably practicable. The undersigned agrees that in connection with any cessation of the corporate existence of the Company, he or she will take all reasonable steps to cause the Company to adopt a plan of dissolution and distribution in accordance with Section 281(b) of the General Corporation Law of the State of Delaware or any successor provision thereto.
[3]. [Include for independent directors only: (a) The undersigned shall not without the prior written consent of the Underwriters with respect to the Offering (i) sell, offer to sell, contract or agree to sell, assign, hypothecate, donate, pledge, grant any security interest in,
2
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 3
encumber, grant any option to purchase or otherwise dispose of or agree to dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission (the “SEC”) in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, in respect of, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of, or any securities convertible into or exercisable or exchangeable for, or other rights to purchase, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) in respect of:
(A) his or her Founders’ Common Stock, for a period of 12 months from the date the Company consummates its Initial Business Combination or earlier in the event that subsequent to the consummation of the Initial Business Combination (x) the last sales price of the Common Stock equals or exceeds $14.25 per share for any 20 trading days within any 30-trading day period commencing 90 days after the date of the consummation of such Initial Business Combination or (y) the Company consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property;
(b) Notwithstanding the foregoing, the undersigned may transfer his or her Founders’ Common Stock (A) to the Company’s executive officers or directors, any affiliates or family members of any of the Company’s executive officers or directors, any affiliates of the Sponsor, including the present and any former members of the Sponsor, (B) by gift to a member of an initial stockholder’s immediate family or to a trust, the beneficiary of which is a member of the initial stockholder’s immediate family, an affiliate of the holder or to a charitable organization; (C) by virtue of the laws of descent and distribution upon death of the initial stockholder; (D) by virtue of the laws of the state of Delaware or the Sponsor’s limited partnership or limited liability company agreement upon dissolution of the Sponsor; (E) pursuant to a qualified domestic relations order; (F) in the event of the Company’s liquidation prior to the completion of an Initial Business Combination; and (G) in the event of the consummation of a liquidation, merger, stock exchange or other similar transaction by the Company which results in all of the stockholders having the right to exchange their shares of common stock for cash, securities or other property subsequent to the consummation of an Initial Business Combination; provided, however, that the permissive transfers set forth in this paragraph (b) may be implemented only upon the respective transferee’s written agreement with the Company to be bound by the terms and conditions of such transfer restrictions and of this letter and, if at the time applicable, the voting, waiver and forfeiture provisions with respect to the securities being transferred (as applicable, such permitted transferees the “Permitted Transferees”).
3
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 4
(c) Further, the undersigned agrees that after the applicable lock-up periods described in this Section 3 have elapsed, such securities shall only be transferable or saleable pursuant to a sale registered under the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder or pursuant to an available exemption from such registration. The Company and the undersigned each acknowledge that pursuant to the Registration Rights Agreement dated [____________] between the Company, the Sponsor and certain directors of the Company, including the undersigned, the undersigned may request that a registration statement relating to the Founders’ Common Stock be filed with the Securities Exchange Commission prior to the end of the applicable lock-up period described in this Section 3; provided that such registration statement does not become effective prior to the end of the applicable lock-up period.]
[3][4]. The undersigned’s biographical information furnished to the Company and attached here as Exhibit A is true and accurate in all respects and 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 represents and warrants that:
(a) 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;
(b) the undersigned has never been convicted of or pleaded guilty to any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and the undersigned is not currently a defendant in any such criminal proceeding; and
(c) 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 registrations denied, suspended or revoked.
[4][5]. (a) Except as disclosed in the Prospectus, neither the undersigned nor any affiliate of the undersigned will be entitled to receive, and no such person will accept, any fees, reimbursements or other compensation of any kind from the Company for services rendered to the Company prior to or in connection with the consummation of an Initial Business Combination other than reimbursement for any out-of-pocket expenses related to the Offering and identifying, investigating and consummating an Initial Business Combination. The undersigned acknowledges that the audit committee of the Company’s board of directors will
4
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 5
review and approve all payments and reimbursements made to the undersigned and his or her affiliates in excess of $10,000, and that any payments and reimbursements made to members of the audit committee will be reviewed and approved by the Company’s board of directors, with any interested directors abstaining from such review and approval.
(b) Neither the undersigned nor any affiliate of the undersigned will accept a finder’s fee, consulting fee or any other compensation or fees from any other person in connection with an Initial Business Combination, other than compensation or fees that may be received for any services provided following an Initial Business Combination.
[5][6]. The undersigned represents and warrants that, except as described in the Registration Statement, there are no claims, payments, arrangements, contracts, agreements or understandings relating to the payment of a brokerage commission or finder’s, consulting, origination or similar fee by such director or officer with respect to the sale of the securities pursuant to the Underwriting Agreement or any other arrangements, agreements or understandings by such holder or such director or officer that may affect the Underwriters’ compensation, as determined by the FINRA.
[6][7]. The undersigned agrees that he or she will not participate in the formation of, or become an officer or director of, any other blank check company until the closing of the Offering. The undersigned agrees not to become involved in with any blank check company that will seek to effect a business combination with a company in the energy, power and related industries, until the Company has entered into a definitive agreement regarding the Initial Business Combination. The undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company would be irreparably injured in the event of a breach by the undersigned of any of his or her obligations under this paragraph [6][7], (ii) monetary damages would not be an adequate remedy for any such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy such party may have, in the event of such breach.
[7][8]. The undersigned represents and warrants that [Include for officers only: the Right of First Review Agreement] [Include for independent directors only: each of the Registration Rights Agreement and Securities Assignment Agreement] has been duly authorized, executed and delivered by the Sponsor, is a valid and binding agreement of the undersigned, enforceable against the undersigned in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability.
[8][9]. The undersigned has full right and power, without violating any agreement by which he or she is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this letter agreement and serve as [specify office] [a director] of the Company, and hereby consents to being named in the Prospectus as an [officer] [director] of the Company.
5
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 6
[9][10]. As used herein, (a) an “Extension Period” shall mean the extended period of time within which the Company must complete an Initial Business Combination from 24 months to up to 30 months from the date of the final Prospectus approved by the Company’s stockholders in accordance with and under the circumstances contemplated by the Company’s amended and restated certificate of incorporation; (b) an “Initial Business Combination” shall mean a business combination with one or more target businesses that have an aggregate fair market value of at least 80% of the amount held in the Trust Account (excluding the amount held in the trust account representing the Underwriters’ deferred commission) at the time of the signing of a definitive agreement in connection with an Initial Business Combination; (c) “Founders’ Units” shall mean the 7,187,500 units of the Company in aggregate amount acquired by the Sponsor prior to the consummation of the Offering, with each unit consisting of one share of Common Stock (the “Founders’ Common Stock”) and one warrant to purchase one share of Common Stock (the “Founders’ Warrants”), of which an aggregate of 86,250 Founders’ Common Stock were subsequently transferred to Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxx; (d) “Public Stockholders” shall mean the holders of the Company’s securities issued in the Offering; [(e) “Registration Rights Agreement” shall mean that certain Registration Rights Agreement, dated as of [_____________________], 2008, entered into by and among the Company, the Sponsor and the other parties thereto;] [(e) “Right of First Review Agreement” shall mean that certain Right of First Review Agreement, dated as of [ ], 2008, entered into by and between the Company, Sponsor and other parties thereto;] [(f) “Securities Assignment Agreement” shall mean that certain Securities Assignment Agreement, dated as of [ ], 2008, entered into by and among the Sponsor, Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxx;] [(f)][(g)] “Sponsor” shall mean Orbit Holdings, LLC, a Delaware limited liability company; [(g)][(h)] “Sponsor’s Warrants” shall mean the 6,000,000 warrants of the Company in aggregate amount, each exercisable for one share of Common Stock, acquired by the Sponsor simultaneously with the consummation of the Offering; and [(h)][(i)] “Trust Account” shall mean the trust fund into which a portion of the net proceeds of the Offering and the proceeds of the private placement of the Sponsor’s Warrants will be deposited.
[10][11]. The undersigned acknowledges and understands that the Company and the Underwriters will rely upon the agreements, representations and warranties set forth herein in proceeding with the Offering. Nothing contained herein shall be deemed to render any Underwriter with respect to the Offering a representative of, or a fiduciary with respect to, the Company, its stockholders, or any creditor or vendor of the Company with respect 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
6
Orbit Acquisition Corp.
JPMorgan Securities Inc.
Page 7
parties. 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 letter agreement 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. This letter agreement shall be binding on the parties hereto and their respective successors, heirs, personal representatives and permitted assigns. This letter agreement shall terminate on the earlier of (i) the expiration of the Lock-Up Period and (ii) the liquidation of the Company; provided, that this letter agreement shall earlier terminate in the event that the Offering is not consummated and closed by [______________________]; provided, further, that any such termination shall not relieve the undersigned from liability for any breach of this agreement by him or her prior to its termination.
|
|
|
|
Sincerely, |
|
|
|
|
|
|
|
|
|
[Name] |
Acknowledged and Agreed:
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Xxxxx X. Xxxxxxx |
|
|
|
|
JPMORGAN SECURITIES INC. |
|
|
| |
|
|
|
|
|
|
|
|
[Name] |
|
|
|
7
Exhibit A
(Attached)
8
