Re: Initial Public Offering
[
], 2008
00
Xxxxxxxxx Xxxxxx
Greenwich,
CT 06831
Citigroup
Global Markets, Inc.
000
Xxxxxxxxx Xxxxxx
New
York,
NY 10013
| Re: |
Initial
Public Offering
|
Gentlemen:
This
letter agreement is being delivered to you in accordance with the underwriting
agreement entered into by and between Lank Acquisition Corp.
(the
“Company”)
and
Citigroup Global Markets, Inc. (“Citi”
or
the
“Representative”),
as
representative of the several underwriters relating to an initial public
offering (the “IPO”)
of
12,500,000 units (14,375,000 if the over-allotment option is exercised in full),
each unit comprised of one share of the Company’s common stock, par value $.0001
per share (the “Common
Stock”)
and
one warrant exercisable for one share of Common Stock. The undersigned 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: (i) vote all Insider Shares owned by the undersigned in the
same manner as a majority of the votes cast by the Public Stockholders who
vote
at the special or annual meeting called for the purpose of approving the
Business Combination, (ii) vote any shares of Common Stock acquired in or
following the IPO in favor of the Business Combination and (iii) vote all
Insider Shares and all shares it may acquire in or following the IPO in favor
of
an amendment to the Company’s Amended and Restated Certificate of Incorporation
to provide for perpetual existence of the Company in the event the Business
Combination is approved.
2.
Except
with respect to any of the IPO Shares acquired by the undersigned in connection
with or following the IPO, the undersigned hereby irrevocably: (i) waives
any and all right, title, interest, cause of action or claim of any kind (a
“Claim”)
in or
to all funds in the Trust Account and any remaining net assets of the Company
upon liquidation of the Trust Account and dissolution of the Company;
(ii) 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, which
Claim
would reduce, encumber or otherwise adversely affect the amounts held in the
Trust Account; and (iii) agrees the undersigned will not seek recourse
(legal, equitable or otherwise) against the Trust Account for any reason
whatsoever. The undersigned hereby agrees it shall promptly reimburse the Trust
Account for any distribution of amounts in the Trust Account received by the
undersigned in respect of its Insider Shares. For clarity, the undersigned
may
receive liquidating distributions from the Trust Account in respect of IPO
Shares.
3. The
undersigned acknowledges and agrees the Company will not consummate any Business
Combination involving a company or any person affiliated with any of the
Insiders, unless the Company obtains an opinion from an independent third party
appraiser, which may or may not be an investment banking firm that is a member
of the Financial Industry Regulatory Authority, Inc., reasonably acceptable
to
the Representative that the Business Combination is fair to the Company’s
stockholders from a financial perspective.
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4. Neither
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 the undersigned shall
be entitled to reimbursement from the Company for its out of pocket expenses
incurred in connection with seeking and consummation a Business
Combination.
5. The
undersigned agrees that neither the undersigned, nor any Affiliate of the
undersigned will be entitled to receive or accept, and the undersigned, on
behalf of the undersigned and its Affiliates, hereby waives any rights to,
a
finder’s fee, cash payment or any other compensation payable by the Company in
the event the undersigned or any Affiliate of the undersigned originates a
Business Combination or otherwise renders services on behalf of the Company
prior to or in connection with a Business Combination.
6. (a) The
undersigned will escrow its Insider Shares for the period commencing on the
effective
date of the prospectus (the “Effective
Date”)
of the
registration statement relating to the IPO, file number 333-148001, and
ending one year after the date of the Company’s initial Business Combination, or
such earlier date if, subsequent to the Business Combination, (i) the closing
price of the Common Stock equals or exceeds $16.00 per share for any 20 trading
days within any 30-trading day period commencing 90 days after the Business
Combination or (ii) the Company consummates a subsequent liquidation, merger,
stock exchange or other similar transaction which results in all Company
stockholders having the right to exchange their shares of Common Stock for
cash,
securities or other property, subject in all respects 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.
(b) The
undersigned will
escrow its Insider Warrants for the period commencing on the Effective Date
and
ending thirty (30) days after the date of the Company’s initial Business
Combination, subject in all respects 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.
7. The
undersigned’s information furnished to the Company and the Representative 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, as amended. The undersigned’s Questionnaire
furnished to the Company and the Representative is true and accurate in all
material respects. The undersigned further represents and warrants to the
Company and the Representative that:
(a) No
petition under the Federal bankruptcy laws or any state insolvency law has
been
filed by or against, or a receiver, fiscal agent or similar officer has been
appointed by a court for the business or property of the undersigned, or any
partnership in which the undersigned was or is a general partner within two
(2)
years prior to the date hereof;
(b) The
undersigned has not been convicted in any criminal proceeding nor is the
undersigned currently a named subject of a pending criminal proceeding
(excluding traffic violations and other minor offenses);
(c) The
undersigned has not been the subject of any order, judgment, or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining the undersigned from, or
otherwise limiting, the following activities:
(i) Acting
as
a futures commission merchant, introducing broker, commodity trading advisor,
commodity pool operator, floor broker, leverage transaction merchant, any other
person regulated by the Commodity Futures Trading Commission, or an associated
person of any of the foregoing, or as an investment adviser, underwriter, broker
or dealer in securities, or as an affiliated person, director or employee of
any
investment company, bank, savings and loan association or insurance company,
or
engaging in or continuing any conduct or practice in connection with such
activity;
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(ii) Engaging
in any type of business practice; or
(iii) Engaging
in any activity in connection with the purchase or sale of any security or
commodity or in connection with any violation of Federal or State securities
laws or Federal commodities laws;
(d) The
undersigned has not been the subject of any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any Federal or State authority
barring, suspending or otherwise limiting for more than sixty (60) days the
right of the undersigned to engage in any activity described in paragraph (c)(i)
above, or to be associated with persons engaged in any such activity;
(e) The
undersigned has not been found by a court of competent jurisdiction in a civil
action or by the Securities and Exchange Commission to have violated any Federal
or State securities law, and the judgment in such civil action or finding by
the
Securities and Exchange Commission has not been subsequently reversed,
suspended, or vacated;
(f) The
undersigned has not been found by a court of competent jurisdiction in a civil
action or by the Commodity Futures Trading Commission to have violated any
Federal commodities law, and the judgment in such civil action or finding by
the
Commodity Futures Trading Commission has not been subsequently reversed,
suspended or vacated;
(g) The
Subscription Agreement dated November 15, 2007 by and between the undersigned
and the Company has been duly authorized, executed and delivered by the
undersigned, 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;
(h) The
Securities Subscription Agreement dated November 15, 2007 by and between the
undersigned and the Company has been duly authorized, executed and delivered
by
the undersigned, 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;
(i) Upon
execution thereof, the Registration Rights Agreement referred to in the
Prospectus will be duly authorized, executed and delivered by the undersigned
and will constitute a valid and binding agreement of the undersigned,
enforceable against it in accordance with its terms except as 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;
(j) The
undersigned has full right and power, without violating any agreement by which
the undersigned is bound, to enter into this letter agreement. This letter
agreement has been duly authorized, executed and delivered by the undersigned
and is a valid and binding agreement of the undersigned, enforceable against
it
in accordance with its terms except as 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; and
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(k) The
undersigned will not amend its limited liability operating agreement dated
as of
November 17, 2007 prior to the time its Insider Shares and Insider Warrants
are
released from escrow pursuant to the Securities Escrow Agreement entered into
by
and among the Company, American Stock Transfer & Trust Company and the
Insiders.
8. The
undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to the Representative and its legal representatives
or agents (including any investigative search firm retained by the
Representative) any information they may have about the undersigned’s background
and finances (the “Information”).
Neither the Representative 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.
9. To
the
extent the Representative does not exercise its over-allotment option to
purchase up to an additional 1,875,000 units of the Company, the undersigned
agrees it shall return to the Company for cancellation, at no cost to the
undersigned, a number of Insider Shares held by the undersigned determined
by
multiplying 468,750 by a fraction, (i) the numerator of which is 1,875,000
minus
the number of shares of Common Stock included as part of the Units purchased
by
the Representative upon exercise of its over-allotment option and (ii) the
denominator of which is 1,875,000.
10. The
undersigned xxxxxx agrees not to propose or vote in favor of, any amendment
to
the Company’s Amended and Restated Certificate of Incorporation prior to the
consummation of the Company’s initial Business Combination other than in
connection with the proposal to approve the Business Combination. This paragraph
may not be modified or amended under any circumstances.
11. As
used
herein: (i) “Affiliate”
shall
mean a person who, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, the undersigned.
The term “control” means the possession, direct or indirect, of the power to
direct the undersigned, whether by contract or otherwise; (ii) a
“Business
Combination”
shall
mean an acquisition, by merger, capital stock exchange, asset acquisition,
stock
purchase, reorganization or similar business combination and as otherwise
described in the registration statement relating to the IPO, of one or more
businesses or assets selected by the Company; (iii) “Common
Stock”
shall
mean the common stock, par value $.0001 per share, of the Company; (iv)
“Insiders”
shall
mean all officers, directors and stockholders of the Company immediately prior
to the IPO; (v) “Insider
Shares”
shall
mean all of the shares of Common Stock owned by an Insider prior to the IPO;
(vi) “Insider
Warrants”
shall
mean all of the common stock purchase warrants purchased by the undersigned
pursuant to the Private Placement; (vii) “IPO
Shares”
shall
mean the shares of Common Stock issued in the Company’s IPO or purchased on the
open market any time thereafter; (viii) “Private
Placement”
shall
mean the private placement of 2,750,000 warrants of the Company prior to the
IPO; (ix) “Prospectus”
shall
mean the prospectus contained in the registration statement relating to the
IPO;
(x) “Public
Stockholders”
shall
mean the holders of the securities issued by the Company in the IPO; and (xi)
“Trust
Account”
means
the trust account in which the proceeds to the Company of the IPO will be
deposited and held for the benefit of the holders of the IPO shares, as
described in greater detail in the Registration Statement.
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12. The
undersigned hereby agrees any action, proceeding or claim against the
undersigned arising out of or relating in any way to this 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. The undersigned hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenience forum.
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Name:
Lank Acquisition, LLC
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By:
___________________________________
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Name:
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Title:
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