EXHIBIT 10.2
FORM OF LETTER AGREEMENT WITH XXXXX A. R. XXXXXX
Xxxx [__], 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 Insider Shares 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 Gladstone Capital Corp.,
Gladstone Commercial Corp. and Gladstone Investment Corp.
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 President, Secretary and 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 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) "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.
2
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.
-------------------------------
Xxxxx A. R. Xxxxxx
Accepted and agreed as aforesaid:
HARBOR ACQUISITION CORPORATION
By:
------------------------------------------
Xxxxxx X. Xxxxx, Chief Executive Officer
XXXXXX, XXXXX XXXXX, INCORPORATED
By:
-----------------------------------------
Duly Authorized
3
