Form of Letter Agreement for Directors, Officers and Initial Security Holders
Exhibit
10.1
Form
of Letter Agreement for
Directors,
Officers and Initial Security Holders
[Date]
00
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention
of Xxxx X. Xxxxx, President
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention
of [__________]
Chardan
Capital Markets, LLC
00
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention
of [__________]
Re:
Initial
Public Offering
Gentlemen:
This
letter is being delivered to you in accordance with the Underwriting Agreement
entered into by and among BBV Vietnam S.E.A. Acquisition Corp., a Xxxxxxxx
Islands Corporation (the “Company”),
on
the one hand, and Ladenburg Xxxxxxxx & Co. Inc. and Chardan Capital Markets,
LLC, as co-lead managing underwriters (the “Representatives”),
relating to an underwritten initial public offering (the “IPO”)
of
4,500,000 of the Company’s units (5,175,000 if the over-allotment is exercised
in full) (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. The Units sold in the
IPO
will be registered pursuant to a Registration Statement on Form S-1 and
prospectus filed by the Company with the Securities and Exchange Commission.
Certain capitalized terms used herein are defined in paragraph [12]
hereof.
In
order
to induce the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the IPO and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
undersigned hereby agrees with the Company as follows:
1. If
the
Company solicits approval of its shareholders of a Business Combination, and/or
the Extended Period, the undersigned will vote all Insider Shares owned by
him
or her in accordance with the majority of the votes cast by the holders of
the
IPO Shares and will vote all shares of Common Stock of the Company acquired
by
him or her in the IPO or aftermarket in favor of any Business Combination
negotiated by the officers of the Company and the Extended Period.
2. In
the
event that the Company fails to consummate a Business Combination within 18
months from the closing date of the IPO (the “IPO
Closing Date”)
and no
letter of intent, agreement in principle or definitive agreement has been
executed within such 18 month period, or within 24 months from the IPO Closing
Date, if a letter of intent, agreement in principle or definitive agreement
has
been executed within such 18 month period, or within 36 months from the IPO
Closing Date, if so extended upon approval by the shareholders, the undersigned
shall take all such action reasonably within his or her power as is necessary
to
dissolve the Company and liquidate the Trust Account to holders of IPO Shares
as
soon as reasonably practicable. The undersigned hereby waives any and all right,
title, interest or claim of any kind in or to any distribution of the Trust
Account and any remaining net assets of the Company as a result of such
liquidation with respect to its Insider Shares (“Claim”)
and
will not seek recourse against the Trust Account for any reason whatsoever.
3. [In
the
event of the liquidation of the Trust Account, the undersigned agrees to
indemnify and hold harmless the Company jointly and severally with [Xxxxxx
X.X.
Xxx/Xxxx X. Xxxxx], against any and all loss, liability, claims, damage and
expense whatsoever to which the Company may become subject as a result of any
claim by any third party, 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 and only if such third party has not executed a valid and
enforceable agreement waiving claims against the Trust Account. If the remaining
assets outside the Trust Account are insufficient to pay the costs of
liquidation, the undersigned agrees to advance to the Company the funds
necessary to complete such liquidation and agrees not to seek repayment for
such
expenses. The foregoing section is not for the benefit of any third party
beneficiaries of the Company and does not create any contract right in favor
of
any person other than the Company.](1)
4. [In
order
to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees (i) not to become an officer, director
or
principal shareholder of a blank check company with a focus on potential
acquisition targets in the Socialist Republic of Vietnam or Asia and (ii) 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,
or the liquidation of the Company, subject to any pre-existing fiduciary and
contractual obligations the undersigned might have as of the date hereof. For
the purposes hereof, a suitable opportunity shall mean any company or business
having its primary operations in the Socialist Republic of Vietnam and Asia
whose fair market value is at least equal to $28.8 million. The information
relating to the undersigned contained in the “Conflicts of Interest” section of
the Registration Statement is true and accurate in all respects, and does not
omit any material information with respect to the undersigned’s fiduciary or
contractual obligations.
The
undersigned hereby agrees and acknowledges that (i) each of the Underwriters
and
the Company could be irreparably injured in the event of a breach by the
undersigned of his obligations under this paragraph 4, monetary damages may
not
be an adequate remedy for such breach and (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.](2)
5. Prior
to
a Business Combination, neither the undersigned, any member of the family of
the
undersigned, nor any affiliate (“Affiliate”)
of the
undersigned will be entitled to receive and will not accept any compensation
for
services rendered to the Company. Notwithstanding the foregoing to the contrary,
the undersigned shall be entitled to reimbursement from the Company for his
or
her out-of-pocket expenses incurred in connection with seeking and consummating
a Business Combination [and commencing on the Effective Date, Bantry Bay
Ventures-Asia, LLC, an affiliate of the Company’s officers, certain of its
directors and its special advisor (the “Related
Party”),
shall
be allowed to charge the Company $7,500 per month to compensate it for the
Company’s use of the Related Party’s office space and certain technology and
administrative and secretarial services.](3)
(1)
Applicable only to Xxxx X. Xxxxx and Xxxxxx X.X. Xxx.
(2)
Applicable only to offices and directors.
(3)
Applicable only to Xxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xxxxxx Xxx Xxxxx Xxx and
Xxxxxx X.X. Xxx.
6. To
the
extent that the underwriters do not exercise their over-allotment option to
purchase an additional 675,000 Units of the Company, the undersigned agrees
that
he or she shall return to the Company for cancellation, at no cost, the number
of Insider Shares held by the undersigned determined by multiplying [the
number of shares held by the insider]
by a
fraction, (i) the numerator of which is 675,000 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 675,000.
7. [Neither
the undersigned, any member of the family of the undersigned, nor 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. - To
be confirmed by the Company]
8. (a)
For
a
period of time commencing from the date hereof and ending, in the case of
Insider Shares, on the first anniversary of the consummation of the Business
Combination (“Insider
Share Lock-Up Period”)
and,
in the case of the Placement Warrants, sixty days after the consummation of
the
Business Combination (the “Placement
Warrant Lock-Up Period”)
(together with the Insider Share Lock-Up Period collectively the “Lock-Up
Period”),
the
undersigned shall not (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, 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, with respect
to
any Insider Shares, Placement Warrants, the Common Stock issuable upon exercise
of the Placement Warrants or any securities convertible into or exercisable
or
exchangeable for the Insider Shares or Placement Warrants or other rights to
purchase Common Stock or any such securities (the “Offering
Securities”),
(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 the Offering
Securities, 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).
(b) Notwithstanding
the foregoing, the undersigned may transfer his or her Insider Shares, the
Placement Warrants, or shares of Common Stock issuable upon exercise of the
Placement Warrants to (a) family members and trusts of permitted assignees
for
estate planning purposes, (b) a person who becomes the transferee by virtue
of
the laws of descent and distribution upon death or (c) officers, directors
and
employees of the Company, or their affiliates, in each case where the transferee
agrees to the terms of this Agreement including, Section 1 and this Section
[8].
(c) The
undersigned agrees that, after the applicable Lock-Up Period has elapsed, the
Offering Securities shall only be transferable or saleable pursuant to a sale
registered under the Securities Act of 1933, as amended, (the “Securities
Act”)
or
pursuant to an available exemption from registration under the Securities
Act.
9. (a) The
undersigned agrees to be the [Chairman of the Board of Directors](4) [President
and Director](5) [Vice President and Director](6) [Director](7) [Special
Advisor](8) of the Company and not resign from his or her position until the
earlier of the consummation by the Company of a Business Combination or the
liquidation of the Company,
provided, however,
that
the undersigned is not obligated to contribute a minimum number of hours per
week to the Company’s business or operations. The undersigned’s biographical
information furnished to the Company and the Representatives, 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 Item 401 of Regulation S-K, promulgated
under the Securities Act . The undersigned’s completed Questionnaire furnished
to the Company and the Representatives is true and accurate in all respects.
(4) Applicable only to Xxxxxx X.X. Xxx.
(5)
Applicable only to Xxxx X. Xxxxx.
(6)
Applicable only to Xxxxx Xxx Xxxx Xxx.
(7)
Applicable only to Main Xxx and Tien Xxxxx Xxxxxx.
(8)
Applicable only to Xxxxxxx X. Xxxx.
(b) The
undersigned represents and warrants that:
(i) 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 was
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 years prior
to the date hereof;
(ii) 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);
(iii) 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:
(1) 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;
(2) Engaging
in any type of business practice; or
(3) 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;
(c) 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
(b)(iii) above, or to be associated with persons engaged in any such activity;
(d) The
undersigned has not been found by a court of competent jurisdiction in a civil
action or by the SEC to have violated any Federal or State securities law,
and
the judgment in such civil action or finding by the SEC has not been
subsequently reversed, suspended, or vacated; and
(e) 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.
10. The
undersigned has full right and power, without violating any agreement by which
he or she is bound, to enter into this letter agreement and to serve as
[Chairman of the Board of Directors](9) [President and Director](10) [Vice
President and Director](11) [Director](12)
[Special Advisor](13) of the Company.
11. The
undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to the Representatives and their legal
representatives or agents (including any investigative search firm retained
by
the Representatives) any information they may have about the undersigned’s
background and finances (“Information”).
Neither the Representatives nor their 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.
12. This
letter agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflicts
of
law principles that would result in the application of the substantive laws
of
another jurisdiction. The undersigned hereby (i) agrees that any action,
proceeding or claim against him or her arising out of or relating in any way
to
this letter agreement shall be brought and enforced in the courts of the State
of New York of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be
exclusive and (ii) waives any objection to such exclusive jurisdiction and
that
such courts represent an inconvenient forum.
13. As
used
herein, (i) a “Business
Combination”
shall
mean an acquisition, or acquisition of control, by merger, capital stock
exchange, asset acquisition, stock purchase or other similar business
combination of one or more operating businesses that has its primary operating
facilities located in the Socialist Republic of Vietnam or Asia; (ii)
“Insiders”
shall
mean all officers, directors and security holders 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; (iv) “IPO
Shares”
shall
mean the shares of Common Stock issued in the Company’s IPO; (v) “Trust
Account”
shall
mean the trust account established by the Company immediately prior to the
consummation of its IPO and into which a certain amount of the net proceeds
of
the IPO is to be deposited; (vi) “Extended
Period”
shall
mean the extension, upon shareholder approval, of the period of time during
which the Company may complete a Business Combination from 24 months to 36
months, if the Company anticipates that it may not consummate a Business
Combination within 24 months, if a letter of intent or definitive agreement
with
respect to a business combination has been entered into within 18 months; (vii)
“Placement
Warrant”
shall
mean the warrants purchased by certain of the Insiders in a private placement
immediately prior to the consummation of the IPO; and (viii) “Public
Shareholders”
shall
mean the shareholders that purchased shares of the Company’s Common Stock, that
form a part of the Units, in the IPO.
(9) Applicable only to Xxxxxx X.X. Xxx.
(10)
Applicable only to Xxxx X. Xxxxx.
(22)
Applicable only to Xxxxx Xxx Xxxx Xxx.
(32)
Applicable only to Main Xxx and Tien Xxxxx Xxxxxx.
(33)
Applicable only to Xxxxxxx X. Xxxx.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned have executed this letter agreement as of
the
date first written above.
By:
______________________________________________
Name:
Title:
______________________________________________
Name
of
Insider:
EXHIBIT
A
[Insider
biographical information]
