EXHIBIT 10.12
_____________, 2006
Tailwind Financial Inc.
BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Re: INITIAL PUBLIC OFFERING
Ladies and Gentlemen:
This letter is being delivered to you in accordance with the
Underwriting Agreement (the "UNDERWRITING AGREEMENT") entered into by and
between Tailwind Financial Inc., a Delaware corporation (the "COMPANY"), and
Deutsche Bank Securities Inc. (the "UNDERWRITER"), relating to an underwritten
initial public offering (the "IPO") of the Company's units (the "UNITS"), each
Unit comprised of one share of the Company's common stock, par value $0.01 per
share (the "COMMON STOCK"), and one warrant, which is exercisable for one share
of Common Stock. Certain capitalized terms used herein are defined in paragraph
11 hereof.
In order to induce the Company and the Underwriter to enter into the
Underwriting Agreement and to proceed with the IPO, and in recognition of the
benefit that such IPO will confer upon the undersigned as a stockholder of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agrees with
the Company and the Underwriter as follows:
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. In the event that the Company fails to consummate a Business Combination
within eighteen (18) months from the effective date (the "EFFECTIVE DATE") of
the Registration Statement (or twenty-four (24) months from the Effective Date
under the circumstances described in the Registration Statement), the
undersigned will take all reasonable actions within the undersigned's power to
(i) cause the Trust Account to be liquidated and distributed to the holders of
IPO Shares in accordance with that Investment Management Trust Agreement to be
entered into by and among the Company, Deutsche Bank Securities Inc. and
American Stock Transfer & Trust Company, as Trustee; (ii) cause the Company to
liquidate as soon as reasonably practicable; and (iii) jointly and severally
with Xx. Xxxxxx X. XxXxx and Xx. Xxxxxx X. XxXxxxxx, be liable to (A) pay the
costs of dissolution and liquidation to the extent such expenses exceed the
Company's assets outside of the Trust Account and (B) ensure that the proceeds
in the Trust Account are not reduced by the claims of vendors for services
rendered or products sold to the Company, as well as claims of prospective
target businesses for fees and expenses of third parties that the Company has
agreed to pay in writing in the event that the Business Combination is not
consummated with such target business. The undersigned hereby waives any and all
right, title, interest or claim of any kind in or to (x) any distribution of the
Trust Account with respect to the undersigned's Insider Shares and Common Stock
underlying the Private Placement Warrants in connection with a liquidation and
(y) any remaining net assets of the Company after such liquidation.
3. Except as disclosed in the Registration Statement, none of 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 or in connection with the
consummation of the Business Combination; PROVIDED THAT the undersigned shall be
entitled to reimbursement from the Company for the undersigned's out-of-pocket
expenses incurred in connection with seeking and consummating a Business
Combination.
4. None of the undersigned, any member of the family of the undersigned,
nor any Affiliate of the undersigned will be entitled to receive or accept from
the Company 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.
5. The undersigned shall escrow (i) the undersigned's Insider Shares (if
any) until the first anniversary of the consummation of the Business Combination
and (ii) the undersigned's Private Placement Warrants (if any) and any shares of
Common Stock issued upon exercise thereof until ninety (90) days after
consummation of a Business Combination, in each case subject to the terms of a
Securities Escrow Agreement which the Company will enter into with the
undersigned and American Stock Transfer & Trust Company, as escrow agent, in
form and substance acceptable to the Company.
6. The undersigned's Questionnaire for Directors, Officers and Principal
Stockholders furnished to the Company and attached hereto as EXHIBIT A and the
biographical information in the Registration Statement is true and accurate in
all respects and does not omit any material information with respect to the
undersigned's background. The undersigned's NASD Questionnaire furnished to
Deutsche Bank Securities Inc. and annexed as EXHIBIT B hereto is true and
accurate in all respects. The undersigned represents and warrants that:
6.1 the undersigned 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;
6.2 the undersigned 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
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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;
6.3 the undersigned 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;
6.4 a petition under any federal bankruptcy laws or any state,
territorial or provincial insolvency law was not filed by or against, nor was a
receiver, fiscal agent or similar officer appointed by a court for the business
or property of the undersigned, or for any partnership in which the undersigned
was a general partner within the past two years, or for any corporation or
business association of which the undersigned was an executive officer within
the past two years;
6.5 the undersigned has not been subject to any order prohibiting
and is not subject to any legal proceeding seeking to prohibit him or her from
engaging in any type of business practice;
6.6 the undersigned has not been found by a court of competent
jurisdiction in a civil action by the Securities and Exchange Commission or by
any other federal, state, territorial or provincial administrative or regulatory
authority to have violated any federal, state, territorial or provincial
securities law; and
6.7 the undersigned has not been found by a court of competent
jurisdiction in a civil action by the Commodity Futures Trading Commission or by
any other federal, state, territorial or provincial administrative or regulatory
authority to have violated any federal, state, territorial or provincial
commodities law.
7. The undersigned will, jointly and severally with Xx. Xxxxxx X. XxXxx and
Xx. Xxxxxx X. XxXxxxxx, be liable for any costs in excess of one million dollars
($1,000,000) incurred by the Company in connection with its pursuit of a
Business Combination. Such amounts will be reimbursed upon consummation of a
Business Combination
8. The undersigned authorizes any employer, financial institution, or
consumer credit reporting agency to release to the Company and its legal
representatives or agents (including any investigative search firm retained by
the Company) any information he or it may have about the undersigned's
background and finances ("INFORMATION"), provided that the Information is used
solely to determine the truth and accuracy of the undersigned's representations
hereunder and the disclosure in the Registration Statement and for no other
purpose; provided further that the Company shall use all reasonable efforts to
keep the Information confidential and shall not disclose the Information to any
other person or entity without the prior written consent of the undersigned,
unless such disclosure (i) is required by law or regulation or requested in
connection with a judicial proceeding or governmental investigation or (ii) was
disclosed in the Registration Statement. Neither the Company nor its agents
shall be violating the undersigned's right of privacy in any manner in
requesting and obtaining the Information and the
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undersigned hereby releases them from liability for any damage whatsoever in
that connection.
9. This letter agreement shall be binding on the Company and the
undersigned and the undersigned's respective successors, heirs, personal
representatives and assigns. This letter agreement shall terminate on the
earlier of (i) the date upon which the Business Combination is consummated and
(ii) the date upon which the liquidation and distribution of the Trust Account
is completed, provided that the following Sections shall survive such
termination: 3, 4, 5, 7, 9, 10, 11 and 12.
10. 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. Each of the Company and the
undersigned hereby (i) agrees that any action, proceeding or claim against him
or it 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 or the United States
District Court 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.
11. As used herein:
11.1 "AFFILIATE" shall have the meaning ascribed to it in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended.
11.2 "BUSINESS COMBINATION" shall mean the Company's initial
acquisition of one or more assets or operating businesses through a merger,
capital stock exchange, asset or stock acquisition, exchangeable share
transaction or other similar business combination.
11.3 "INSIDERS" shall mean all officers and directors of the Company
immediately prior to the IPO and each of the following:
Xxxxxx X. XxXxxxxx
Xxxxxx X. XxXxx
Xxxxxx Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
TFC Holdings Ltd.
Parkwood Holdings Ltd.
Fairway Asset Management Corp.
11.4 "INSIDER SHARES" shall mean all of the shares of Common Stock of
the Company owned by an Insider prior to the IPO.
11.5 "IPO SHARES" shall mean the shares of Common Stock comprising
the Units issued in the Company's IPO.
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11.6 "PRIVATE PLACEMENT WARRANT" shall mean up to 4,000,000 warrants
of the Company purchased in a private placement prior to and subject to
consummation of the IPO.
11.7 "REGISTRATION STATEMENT" shall mean the registration statement
filed by the Company on Form S-1 (No. 333-135790) with the Securities and
Exchange Commission on July 14, 2006, and any amendment or supplement thereto,
in connection with the IPO.
11.8 "TRUST ACCOUNT" shall mean the trust account established with
American Stock Transfer & Trust Company, the amounts therein to be released only
in the event of either the consummation of a Business Combination or a
liquidation of the Company.
12. 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 undersigned and the Company.
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Sincerely,
FAIRWAY ASSET MANAGEMENT CORP.
By:
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Name: Xxxxxx X. XxXxxxxx
Title: Chairman and Director
Accepted and agreed:
TAILWIND FINANCIAL INC.
By:
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Name: Xxxxxx X. XxXxx
Title: President and Chief Executive Officer
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EXHIBIT A: QUESTIONNAIRE FOR DIRECTORS, OFFICERS AND PRINCIPAL STOCKHOLDERS
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EXHIBIT B: NASD QUESTIONNAIRE
