March 13, 2009 Tremisis Energy Acquisition Corporation II Houston, TX 77042 Gentlemen:
March 13,
2009
Tremisis
Energy Acquisition Corporation II
0000
Xxxxxxxxx, Xxxxx 000-X
Houston,
TX 77042
Gentlemen:
The
undersigned, as a condition to the consummation of the transactions contemplated
by that certain agreement (the “Put/Call Agreement”), dated
the date hereof, by and among Tremisis Energy Acquisition Corporation II (“Company”), Xxxxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxx, Xxx Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx
Xxxxxxxxx, Xxxx Xxxxxx, Olympus Capital Investment, LLC, Xxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxx XxXxxxxxx, Xxxxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx, Xxxxx X. Xxxxxxx, Xxxx X. Xxxxx, Xxxxxxxx Xxxxxx
(collectively, the “Sellers”), the undersigned and
SoftForum Co., Ltd., hereby agrees as follows (certain capitalized terms used
herein are defined in paragraph 12 hereof):
1. In
the event that the Company fails to consummate a Business Combination within 24
months from the effective date (“Effective Date”) of the
registration statement relating to the Company’s initial public offering of
securities (“IPO”), the
undersigned will (i) cause the trust fund established in connection with the
Company’s IPO (the “Trust
Fund”) to be liquidated and distributed to the holders of IPO Shares and
(ii) 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 in or to any distribution of
the Trust Fund and any remaining net assets of the Company as a result of such
liquidation (“Claim”)
and hereby 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. In the event of
the liquidation of the Trust Fund, 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) that the
Company may become subject as a result of any claim by any vendor or other
person who is owed money by the Company for services rendered or products sold
or contracted for, or by any target business, but only to the extent necessary
to ensure that such loss, liability, claim, damage or expense does not reduce
the amount in the Trust Fund.
2. In
order to minimize potential conflicts of interest that 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 and contractual
obligations the undersigned might have.
3. The
undersigned acknowledges and agrees that the Company will not consummate any
Business Combination that involves a company that is affiliated with any of the
Insiders unless the Company obtains an opinion from an independent investment
banking firm reasonably acceptable to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as representative of the underwriters of the Company’s IPO, that
the Business Combination is fair to the Company’s stockholders from a financial
perspective.
4. 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 prior to or in connection with the consummation
of the Business Combination; provided that 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.
5. 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.
6. The
undersigned acknowledges and agrees that any Insider Shares that may be
transferred to him upon consummation of a Business Combination pursuant to the
Put/Call Agreement will continue to be held in escrow until one year after the
consummation by the Company of such Business Combination, subject to the terms
of that certain Stock Escrow Agreement, dated as of December 6, 2007 by and
among the Company, the Sellers and Continental Stock Transfer & Trust
Company.
7. The
undersigned agrees to be a Director and Co-Chief Executive Officer 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 the Underwriters 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 of 1933. 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 a Director and
as Co-Chief Executive Officer of the Company.
9. The
undersigned hereby waives his right to exercise conversion rights with respect
to any shares of the Company’s common stock owned or to be owned by the
undersigned, directly or indirectly, and agrees that he will not seek conversion
with respect to such shares in connection with any vote to approve a Business
Combination.
10. In
the event that the Company does not consummate a Business Combination and must
liquidate, and its remaining net assets are insufficient to complete such
liquidation, the undersigned agrees to advance such funds necessary to complete
such liquidation and agrees not to seek repayment for such
expenses.
11. This
letter agreement may not be amended or modified without the prior consent of
Xxxxxx X. Xxxxxx, as representative of the Sellers. 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 arising out of or relating in any way to this letter agreement (a “Proceeding”) 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, (ii) waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum and (iii) irrevocably agrees to appoint Xxxxx, Xxxxx, Xxxx, Xxxxxx,
Xxxxxxx and Xxxxx, P.C. as agent for the service of process in the State of New
York to receive, for the undersigned and on his behalf, service of process in
any Proceeding. If for any reason such agent is unable to act as such, the
undersigned will promptly notify the Company and the Underwriters and appoint a
substitute agent acceptable to the Company within 30 days and nothing in this
letter agreement will affect the right of either party to serve process in any
other manner permitted by law.
12. 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; (ii) “Insiders” shall mean all
former and current officers and directors of the Company and all stockholders of
the Company that acquired shares of Common Stock of the Company prior to the
IPO, or, if after the IPO, in a private transfer from another former or current
officer or director of the Company, or from a stockholder that purchased such
shares of Common Stock prior to the IPO; (iii) “Insider Shares” shall mean all
of the shares of Common Stock of the Company acquired by an Insider prior to the
IPO or, if acquired after the IPO, in a private transfer from another Insider;
and (iv) “IPO Shares”
shall mean the shares of Common Stock issued in the Company’s IPO.
| /s/ Xxxx-Xxxx Xxx | |
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Xxxx-Xxxx
Xxx
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