Form of Letter Agreement for Open Acq LLC]
Exhibit 10.6
[Form
of Letter Agreement for Open Acq LLC]
[ ],
2008
00 Xxxx
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Deutsche
Bank Securities Inc.
As
Representative of the several Underwriters
c/o
Deutsche Bank Securities Inc.
00 Xxxx
Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Re: Initial Public Offering of
Open Acquisition Corp.
Ladies
and Gentlemen:
This
letter is being delivered to you in accordance with the Underwriting Agreement
dated as of [ ], 2008 (the “Underwriting
Agreement”), by and between Open Acquisition Corp., a Delaware
corporation (the “Company”), and
Deutsche Bank Securities Inc. (“Deutsche Bank”), as
representative of the underwriters named in Schedule I thereto (the “Underwriters”),
relating to an underwritten initial public offering (the “Initial Public
Offering”) of the Company’s units (the “Units”), each
consisting of one share of the Company’s common stock, par value $0.0001 per
share (the “Common
Stock”), and one warrant (a “Warrant”) entitling
the holder thereof to purchase one share of Common Stock.
The
undersigned, Open Acq LLC, a Delaware limited liability company (the “Sponsor”), has
purchased from the Company (i) 3,593,750 Units (the “Founder Units”)
pursuant to a Unit Subscription Agreement dated as of January 18, 2008, and (ii)
3,500,000 Warrants (the “Insider Warrants”)
pursuant to an Insider Warrant Purchase Agreement dated as of January 18,
2008. The terms of the Warrants are set forth in the Warrant
Agreement dated as of [ ], 2008, as amended (the “Warrant Agreement”),
by and between the Company and Continental Stock Transfer & Trust
Company. On [ ], 2008, the Sponsor transferred
[ ] shares of Common Stock included in the Founder Units to
certain officers and directors of the Company and other related
parties.
In order
to induce the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the Initial Public Offering, and in recognition of
the benefit that such Initial Public Offering will confer upon the Sponsor as a
securityholder of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Sponsor hereby
agrees with the Company as follows:
1. Approval of Business
Combination or Extension Period. The Sponsor agrees that (i)
in connection with any vote of the stockholders of the Company on (a) a proposed
extension of the time period within which the Company must consummate a Business
Combination (as defined in the Company’s Amended and Restated Certificate of
Incorporation in effect on the date hereof (the “Certificate of
Incorporation”)) to up to 30 months or (b) a proposed Business
Combination, it will vote any shares of Common Stock included in (or that were
previously part of) the Founder Units that are owned directly or indirectly by
it in accordance with the majority of votes cast by the holders of shares of
Common Stock included in the Units issued in the Initial Public Offering (the
“IPO Shares”),
and (ii) in connection with a stockholder vote to approve a proposed Business
Combination, it will vote any such shares in favor of an amendment to the
Certificate of Incorporation providing for the Company’s perpetual existence
following the consummation of the Business Combination.
2. Liquidation; Waiver of
Claims. a) In the event that the Company fails to
consummate a Business Combination within 24 months (or up to 30 months if the
public stockholders approve an extension pursuant to the terms of the
Certificate of Incorporation) after the date of the final prospectus included in
the Registration Statement on Form S-1 relating to the Initial Public Offering
(the “Registration
Statement”), the Sponsor will take all reasonable actions within its
power to (i) cause the Trust Account (as defined in the Certificate of
Incorporation) to be liquidated and the proceeds to be distributed to the
holders of the IPO Shares as soon as reasonably practicable and (ii) cause the
Company to liquidate as soon as reasonably practicable (the earliest date on
which the conditions in clauses (i) and (ii) are both satisfied being the “Liquidation Date”),
in each case in accordance with the terms of the Certificate of Incorporation
and all applicable laws.
(b) The
Sponsor hereby waives any and all right, title, interest or claim of any kind in
or to any distributions of the Trust Account as a result of such liquidation of
the Company with respect to any shares of Common Stock included in (or that were
previously part of) the Founder Units that are owned directly or indirectly by
it. In addition, the Sponsor hereby waives any right, title, interest
or claim of any kind in respect of any monies in the Trust Account the Sponsor
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 or make any claim against
the Trust Account for any reason whatsoever.
(c) The
Sponsor acknowledges and agrees that there will be no distribution from the
Trust Account with respect to any Warrants, all rights of which will terminate
on the Company’s liquidation.
3. Indemnification. The
Sponsor agrees to indemnify and hold harmless the Company against any and all
loss, liability, claim, 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, service provider or prospective target
business, including, but not limited to, accountants, lawyers and investment
bankers, or other individual or entity 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 expense does not reduce the amount
in the Trust Account. In the event the Company obtains a valid and
enforceable waiver of any right, title, interest or claim of any kind in or to
any monies held in the Trust Account for the benefit of our stockholders from a
vendor, service provider, prospective target business or other entity, this
indemnification will not be available.
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4. Transfer
Restrictions. The Sponsor will not assign, alienate, pledge,
attach, sell or otherwise transfer or encumber (each, a “Transfer”), directly
or indirectly, any Founder Units or any shares of Common Stock or Warrants
included in (or that were previously part of) the Founder Units (including the
Common Stock issuable upon exercise of such Warrants) that it currently owns or
may acquire hereafter from the date hereof until 180 days following the date of
the consummation of a Business Combination, except to a Permitted
Transferee. Any Transfer of such securities to a Permitted Transferee
will be made in accordance with applicable securities laws. Any
Transfer of securities pursuant to this Paragraph 4 after the date hereof shall
be subject to the condition that the Permitted Transferee shall have agreed in
writing to be bound by the terms of Paragraphs 1, 2, 4, 7 and 8
hereof.
“Permitted Transferee”
means (i) the Company, any of the Company’s officers, directors and employees,
or Family Members of such individuals, (ii) in the case of individuals, by gift
to the individual’s Family Member or to a trust, the beneficiary of which is the
individual’s Family Member, (iii) any individual pursuant to a qualified
domestic relations order, (iv) if the transferor is a limited liability company,
any stockholder, partner or member of the transferor and (v) any individual or
entity by virtue of laws or agreements governing descent or distribution upon
the death or dissolution of the transferor. “Affiliate” has the
meaning set forth in Rule 405 under the Securities Act of 1933, as amended and
in effect on the date hereof (the “Securities
Act”). “Family Member” of a
person means such person’s present spouse and/or domestic partner, parents,
lineal ascendants or descendants or any siblings of any of the foregoing, or any
estate planning vehicle formed primarily for the benefit of such person or any
of the foregoing persons.
5. Limitation on
Compensation. b) Neither the Sponsor nor any
Affiliate of the Sponsor will be entitled to receive, and no such person will
accept, a finder’s fee, consulting fee or any other compensation from the
Company for services rendered to the Company prior to or in connection with the
consummation of a Business Combination other than pursuant to the letter
agreement dated as of the date hereof between the Company and the Sponsor
relating to the provision of administrative services to the
Company.
(b) Neither
the Sponsor nor any Affiliate of the Sponsor will accept a finder’s fee,
consulting fee or any other compensation (other than by virtue of ownership of
Founder Units, Insider Warrants or any securities included in or issuable upon
exercise of such securities) or fees from any other entity in connection with a
Business Combination, other than compensation or fees that may be received for
any services provided following such Business Combination.
6. Representations and
Warranties. The Sponsor represents and warrants
that:
(a) 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
the Sponsor with respect to the sale of the securities pursuant to the
Underwriting Agreement or any other arrangements, agreements or understandings
by the Sponsor that may affect the Underwriters’ compensation pursuant to the
Underwriting Agreement;
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(b) It
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;
(c) It
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 the
Sponsor is not currently a defendant in any such criminal
proceeding;
(d) It
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; and
(e) Its
questionnaire furnished to the Company and the Underwriters and attached hereto
as Exhibit A is true and accurate in all material respects.
7. No Amendments. The
Sponsor agrees that it will not propose any amendment to Articles II, V or VI of
the Certificate of Incorporation or support, endorse or recommend any proposal
that stockholders amend such provisions, other than in connection with a
proposed Business Combination or a proposed extension of the time period within
which the Company must consummate a Business Combination to up to 30 months,
without the affirmative vote of at least 95% of the IPO Shares.
8. Miscellaneous. c) The
Sponsor acknowledges and understands that the Company and the Underwriters will
rely upon the agreements, representations and warranties set forth herein in
proceeding with the Initial Public Offering. Nothing contained herein
shall be deemed to render the Underwriters 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.
(b) This
letter agreement shall be binding on the Sponsor and its successors and
assigns. This letter agreement shall terminate on the earlier of (i)
the consummation of a Business Combination and (ii) the Liquidation Date; provided that such
termination shall not relieve the Sponsor from liability for any breach of this
letter agreement that occurred prior to its termination, and provided further
that paragraph 2 of this letter agreement shall survive a termination pursuant
to clause (ii).
(c) This
letter agreement constitutes the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings (whether written or oral) between the parties
relating to such subject matter. None of the parties shall be liable or bound to
any other party in any manner by any representations and warranties or covenants
relating to such subject matter except as specifically set forth
herein.
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(d) This
letter agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regard to the principles of conflicts of laws
thereof.
(e) No
term or provision of this letter agreement may be amended, changed, waived,
altered or modified except by written instrument executed and delivered by the
party against whom such amendment, change, waiver, alteration or modification is
to be enforced.
[Signature page
follows]
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OPEN
ACQ LLC
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By:
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Name:
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Title:
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Accepted
and agreed:
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DEUTSCHE
BANK SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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EXHIBIT
A
Sponsor
Questionnaire
