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 12 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 he 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. (a) In
the
event the Company fails to consummate a Business Combination within 24 months
after the effective date of the prospectus (the “Effective
Date”)
of the
registration statement relating to the IPO, file number 333-148001, as amended
from time to time (the “Termination
Date”),
the
undersigned shall, in accordance with all applicable requirements of the
Delaware General Corporation Law, take all action reasonably within his power
to
liquidate the Company and distribute all funds held in the Trust Account to
the
Public Stockholders as soon as reasonably practicable following the Termination
Date in the manner and subject to the deductions set forth in the Prospectus.
In
addition, from and after the Termination Date, the undersigned will, in
accordance with the Company’s Amended and Restated Certificate of Incorporation,
take all action reasonably within his power to limit the Company’s activities to
winding up its affairs and liquidating the Trust Account.
(b) 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 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.
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3. In
order
to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees, until the earlier of the Company’s
consummation of a Business Combination or its liquidation, to present to the
Company for its consideration, prior to presentation to any other person or
entity (subject to the pre-existing fiduciary obligations that the undersigned
has as described in the registration statement relating to the IPO), any
business combination opportunity if such opportunity has a fair market value
of
$100 million or more. The undersigned also agrees not to (i) pursue such a
business combination opportunity described above, separate from the Company,
unless and until the Board of Directors of the Company, acting by a majority
of
disinterested, independent directors, has determined that the Company will
not
pursue such business combination opportunity or (ii) enter into a similar
agreement with another entity that may conflict with the undersigned's
obligations pursuant to this paragraph. The undersigned xxxxxx agrees and
acknowledges that (i) the Representative and the Company could be irreparably
harmed in the event of a breach by the undersigned of his obligations under
this
paragraph 3 and monetary damages may not be an adequate remedy for such breach,
(ii) 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.
4. The
undersigned acknowledges and agrees the Company will not consummate any Business
Combination involving a company 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.
5. 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 the undersigned shall be entitled to
reimbursement from the Company for his out-of-pocket expenses incurred in
connection with seeking and consummating a Business Combination.
6. The
undersigned agrees that neither the undersigned, any member of the family of
the
undersigned, nor any Affiliate of the undersigned will be entitled to receive
or
accept, and the undersigned, on behalf of the undersigned and the aforementioned
parties, hereby waives any rights to, a finder’s fee, cash payment or any other
compensation payable by the Company in the event the undersigned, any member
of
the family of 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.
7. The
undersigned will escrow his Insider Shares, if any, for the period commencing
on
the Effective Date and
ending one year from 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.
2
8. The
undersigned agrees to be a director 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 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, 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 at or within
two years prior to the date hereof, or any corporation or business association
of which the undersigned was an executive officer at or 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;
(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;
3
(g) The
Stock
Purchase Agreement dated January 2, 2008 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; and
(h) 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.
9. The
undersigned has full right and power, without violating any agreement by which
the undersigned is bound, to enter into this letter agreement and to serve
as a
director of the Company.
10. 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.
11. 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.
12. 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) “IPO
Shares”
shall
mean the shares of Common Stock issued in the Company’s IPO or purchased on the
open market any time thereafter; (vii) “Private
Placement”
shall
mean the private placement of 2,750,000 warrants of the Company prior to the
IPO; (viii) “Prospectus”
shall
mean the prospectus contained in the registration statement relating to the
IPO;
(ix) “Public
Stockholders”
shall
mean the holders of the securities issued by the Company in the IPO; and (x)
“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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13. 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.
|
Name:
Xxxxxx Xxxxxx
|
|
|
Signature
|
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EXHIBIT
A
6
