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East India Co Acquisition Corp. – IPO: ‘S-1’ on 6/13/06 – EX-10.5

On:  Tuesday, 6/13/06, at 12:30pm ET   ·   Accession #:  1144204-6-24543   ·   File #:  333-134968

Previous ‘S-1’:  None   ·   Next & Latest:  ‘S-1/A’ on 8/8/06

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 6/13/06  East India Co Acquisition Corp.   S-1                   24:1.9M                                   Vintage/FA

Initial Public Offering (IPO):  Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML    448K 
 2: EX-1.1      Underwriting Agreement                              HTML    248K 
 3: EX-1.2      Underwriting Agreement                              HTML     37K 
 4: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML     37K 
 5: EX-3.2      Articles of Incorporation/Organization or By-Laws   HTML     94K 
 6: EX-4.1      Instrument Defining the Rights of Security Holders  HTML     22K 
 7: EX-4.2      Instrument Defining the Rights of Security Holders  HTML     23K 
 8: EX-4.3      Instrument Defining the Rights of Security Holders  HTML     25K 
 9: EX-4.4      Instrument Defining the Rights of Security Holders  HTML    113K 
10: EX-4.5      Instrument Defining the Rights of Security Holders  HTML     98K 
11: EX-5.1      Opinion re: Legality                                HTML     18K 
12: EX-10.1     Material Contract                                   HTML     36K 
21: EX-10.10    Material Contract                                   HTML     24K 
22: EX-10.11    Material Contract                                   HTML    106K 
23: EX-10.12    Material Contract                                   HTML     20K 
13: EX-10.2     Material Contract                                   HTML     36K 
14: EX-10.3     Material Contract                                   HTML     36K 
15: EX-10.4     Material Contract                                   HTML     28K 
16: EX-10.5     Material Contract                                   HTML     35K 
17: EX-10.6     Material Contract                                   HTML     28K 
18: EX-10.7     Material Contract                                   HTML     77K 
19: EX-10.8     Material Contract                                   HTML     58K 
20: EX-10.9     Material Contract                                   HTML     14K 
24: EX-23.1     Consent of Experts or Counsel                       HTML     11K 

EX-10.5   —   Material Contract

This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]


May 31, 2006

East India Company Acquisition Corp.
40 West 25th Street, 6th Floor
New York, New York 10010

EarlyBirdCapital, Inc.
275 Madison Avenue
Suite 1203
New York, New York 10016

Initial Public Offering


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.

Marc L. Walinsky
Print Name of Insider

/s/ Marc L. Walinsky



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.


Dates Referenced Herein

This ‘S-1’ Filing    Date    Other Filings
Filed on:6/13/06None on these Dates
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Filing Submission 0001144204-06-024543   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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