East
India Company Acquisition Corp.
40
West
25th
Street,
6th
Floor
EarlyBirdCapital,
Inc.
275
Madison Avenue
Suite
1203
| |
|
Re:
|
Initial
Public Offering
|
Gentlemen:
The
undersigned stockholder and director of East India Company Acquisition Corp.
(“Company”), in consideration of EarlyBirdCapital, Inc. (“EBC”) 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 14 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. 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 IPO, the undersigned will (i) cause the Trust Fund (as defined
in the Letter of Intent) 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 with respect to his Insider Shares (“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.
East
India Company Acquisition Corp.
EarlyBirdCapital,
Inc.
Page
2
3. 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 (i) any pre-existing fiduciary and
contractual obligations the undersigned might have and (ii) any fiduciary
and
contractual obligations the undersigned may have in the future as a result
of
his acting as an executive officer of another “specified purpose acquisition
corporation.”
4. 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 EBC that the business combination is fair to the
Company’s stockholders from a financial perspective.
5. 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.
6. 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.
7. The
undersigned will escrow all of his Insider Shares acquired prior to the IPO
for
the three year period commencing on the Effective Date 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.
8. The
undersigned agrees to be 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
EBC 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’s Questionnaire furnished to the Company and EBC and annexed as
Exhibit B hereto is true and accurate in all respects. The undersigned
represents and warrants that:
East
India Company Acquisition Corp.
EarlyBirdCapital,
Inc.
Page
3
(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.
9. 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
of
the Company.
10. 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.
11. The
undersigned hereby agrees to not propose, or vote in favor of, an amendment
to
the Company’s Certificate of Incorporation to extend the period of time in which
the Company must consummate a Business Combination prior to its liquidation.
Should such a proposal be put before stockholders other than through actions
by
the undersigned, the undersigned hereby agrees to vote against such proposal.
This paragraph may not be modified or amended under any
circumstances.
12. The
undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to EBC and its legal representatives or agents
(including any investigative search firm retained by EBC) any information
they
may have about the undersigned’s background and finances (“Information”).
Neither EBC 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.
East
India Company Acquisition Corp.
EarlyBirdCapital,
Inc.
Page
4
13. 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 Graubard Miller
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 EBC and appoint a substitute agent acceptable to each of
the
Company and EBC within 30 days and nothing in this letter will affect the
right
of either party to serve process in any other manner permitted by law.
14. 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 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 acquired by an
Insider prior to the IPO; and (iv) “IPO Shares” shall mean the shares of Common
Stock issued in the Company’s IPO.
Exhibit
A
Marc
L. Walinsky has
been
a member of our board of directors since our inception. Since 2004, Mr. Walinsky
has acted as a consultant to Millstream II Acquisition Corporation, an OTC
Bulletin Board listed blank check company formed to acquire an operating
business, in its pursuit of a business combination. Since August 2000, Mr.
Walinsky has also served as a director of Safeguard International Fund, L.P.,
a
private equity fund investing primarily in controlling positions in industrial
companies in North America and Europe. From 1999 to 2000, Mr. Walinsky worked
at
Bank of America Capital Investors, the private equity and mezzanine investment
group for Bank of America Corporation. He also worked at Banc of America
Securities LLC in the leveraged finance group, underwriting high yield bonds
and
senior bank debt from 1998 to 1999. Mr. Walinsky received a B.B.A. and a
M.A.
from the University of Michigan.
