UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 13, 2015 (March 11, 2015)
CHART ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-35762 | 45-28532218 | ||
| (State
or other Jurisdiction of Incorporation) |
(Commission File Number) | (IRS
Employer Identification No.) |
c/o The Chart Group, L.P. 555 Fifth Avenue, 19th Floor New York, New York |
10017 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: 212-350-1150
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☒ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Amendment of Trust Agreement
As a result of the meeting of stockholders described in Item 5.07 below (the “Meeting”), on March 11, 2015, Chart Acquisition Corp. (the “Company”) entered into the Trust Agreement (as defined in Item 5.07 below) with Continental Stock Transfer & Trust Company (“Continental”), a copy of which is attached as Exhibit 10.1 hereto and is incorporated by reference herein.
Amendment of Warrant Agreement
On March 11, 2015, the Company and Continental entered into a second amended and restated warrant agreement (the “Second Amended and Restated Warrant Agreement”) to amend the terms of the amended and restated warrant agreement between the parties, dated September 12, 2014. The Second Amended and Restated Warrant Agreement, among other things, extends the date for automatic termination of the issued and outstanding warrants of the Company (the “Warrants”) in the event the Company has not consummated a business combination from March 13, 2015 to June 13, 2015. A copy of the Second Amended and Restated Warrant Agreement is attached as Exhibit 10.2 hereto and is incorporated by reference herein.
Amendment of Existing Promissory Notes
In February 2014, the Company issued convertible promissory notes in the aggregate amount of $400,000 for additional working capital as follows: $140,000 to Cowen Overseas Investment LP (“Cowen”), $246,667 to Chart Acquisition Group LLC (our “Sponsor”) and $13,333 to Joseph R. Wright. On September 9, 2014, the Company issued promissory notes in the aggregate amount of $750,000 as follows: $246,667 non-convertible note to our Sponsor; $215,834 convertible note to our Sponsor; $140,000 non-convertible note to Cowen; $122,500 convertible note to Cowen; $13,333 non-convertible note to Mr. Wright, and $11,666 convertible note to Mr. Wright. On February 4, 2015, the Company issued promissory notes in the aggregate amount of $450,000 as follows: $277,500 non-convertible note to our Sponsor; $157,500 non-convertible note to Cowen Investments LLC, an affiliate of Cowen (“Cowen Investments”), and $15,000 non-convertible note to Mr. Wright.
On March 11, 2015, the Company and each of the holders of the notes entered into an agreement (the “Letter Agreement”) pursuant to which the parties agreed to extend the due date of the notes to the earlier of: (i) June 13, 2015 and (ii) the date on which the Company consummates its initial business combination. The form of the Letter Agreement is attached as Exhibit 10.3 hereto and is incorporated by reference herein.
Amendment of Letter Agreement
On March 11, 2015, the Company, certain of the Company’s security holders, the officers and directors of the Company, Deutsche Bank Securities, Inc. (“Deutsche”) and Cowen Investments entered into a second amended and restated letter agreement (the “Second Amended and Restated Letter Agreement”) to amend the terms of the amended and restated letter agreement, dated September 9, 2014, between the parties. The Second Amended and Restated Letter Agreement, among other things, provides that any references to March 13, 2015 will be replaced with June 13, 2015 and that the number of Warrants that the Purchasers are required to tender for in connection with the business combination shall be reduced by one Warrant for every two Warrants tendered in the Warrant Extension Tender Offer (as defined below). A copy of the form of Second Amended and Restated Letter Agreement is attached as Exhibit 10.4 hereto and is incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As a result of the Meeting, on March 12, 2015, the Company filed with the Secretary of State of the State of Delaware the Company’s Amended and Restated Certificate of Incorporation, a copy of which is attached as Exhibit 3.1 hereto and is incorporated by reference herein.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On March 11, 2015, the Company held a special meeting of stockholders (the “Meeting”). At the Meeting, the stockholders approved the following items: (i) an amendment to the Company’s amended and restated certificate of incorporation (the “Charter”) extending the date by which the Company must consummate its initial business combination from March 13, 2015 to June 13, 2015 (the “Extension Amendment”), (ii) an amendment to the Charter permitting stockholders to redeem their public shares for a pro rata portion of the funds available in the Company’s trust account (the “Trust Account”) and authorizing the Company and Continental, the trustee of the Trust Account, to disburse such redemption payments (the “Redemption Rights Amendment”) and (iii) an amendment to the Amended and Restated Investment Management Trust Agreement (as amended, the “Trust Agreement”) between the Company and Continental permitting distributions from the Trust Account to those persons holding shares of common stock comprising part of the units sold in the Company’s initial public offering who wish to exercise their redemption rights in connection with the Extension Amendment and the Trust Amendment (as defined below), and extending the date on which to liquidate the Trust Account in accordance with the Trust Agreement to June 13, 2015 (the “Trust Amendment”). The affirmative vote of holders of at least sixty-five percent of the issued and outstanding shares of the Company was required to approve each of the proposals. The number of shares of common stock presented for redemption was 3,558,385.
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Set forth below are the final voting results for each of the proposals:
Extension Amendment
The Extension Amendment was approved. The voting results were as follows:
| Votes For | Votes Against | Abstentions | ||||||||
| 8,725,635 | 929 | 0 | ||||||||
Redemption Rights Amendment
The Redemption Rights Amendment was approved. The voting results were as follows:
| Votes For | Votes Against | Abstentions | ||||||||
| 8,725,635 | 0 | 929 | ||||||||
Trust Amendment
The Trust Amendment was approved. The voting results were as follows:
| Votes For | Votes Against | Abstentions | ||||||||
| 8,725,635 | 0 | 929 | ||||||||
Item 8.01 Other Events |
Results of Warrant Extension Tender Offer
The tender offer by our Sponsor, Joseph R. Wright and Cowen Investments (the “Warrant Extension Tender Offer”) to purchase for cash up to 7,492,300 of the issued and outstanding warrants of the Company (the “Warrants”) at a price of $0.30 per Warrant expired at 12:00 midnight., New York City time, on March 11, 2015. Based upon information provided by Continental, the depositary for the Warrant Extension Tender Offer, a total of 647,500 Warrants were validly tendered and not withdrawn in the Warrant Extension Tender Offer. The Purchasers accepted for purchase all such Warrants at a purchase price of $0.30 per Warrant for an aggregate purchase price of $194,250. Such Warrants represent approximately 8.6%, as of March 12, 2015, of the outstanding Warrants issued in the Company’s initial public offering.
Amendment of Escrow Agreement
On March 11, 2015, our Sponsor, Joseph R. Wright and Cowen Investments (collectively, the “Purchasers”), Continental, Deutsche and Cowen and Company, LLC entered into a second amended and restated escrow agreement (“Second Amended and Restated Escrow Agreement”) to amend the terms of the amended and restated escrow agreement between the parties dated September 12, 2014. The Second Amended and Restated Escrow Agreement, among other things, provides that (i) the Company’s failure to complete a business combination by June 13, 2015 (rather than March 13, 2015) will, in the circumstances set forth therein, constitute a Termination Event (as defined therein) thereunder and (ii) the Purchasers are permitted to use the funds held in the escrow account to purchase the warrants tendered in the Warrant Extension Tender Offer (as defined below). A copy of the Second Amended and Restated Escrow Agreement is attached as Exhibit 10.5 hereto and is incorporated by reference herein.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| 3.1 | Amended and Restated Certificate of Incorporation, as filed with the State of Delaware on March 12, 2015 |
| 10.1 | Second Amended and Restated Investment Management Trust Agreement, dated March 11, 2015, by and between Chart Acquisition Corp. and Continental Stock Transfer & Trust Company |
| 10.2 | Second Amended and Restated Warrant Agreement, dated March 11, 2015, by and between Chart Acquisition Corp. and Continental Stock Transfer & Trust Company |
| 10.3 | Form of Letter Agreement, dated March 11, 2015 |
| 10.4 | Form of Second Amended and Restated Letter Agreement, dated March 11, 2015, by and among Chart Acquisition Corp., certain of Chart Acquisition Corp.’s security holders and the officers and directors of Chart Acquisition Corp., Deutsche Bank Securities, Inc. and Cowen Investments, LLC |
| 10.5 | Second Amended and Restated Escrow Agreement, dated March 11, 2015, by and between Chart Acquisition Group, LLC, Joseph Wright, and Cowen Investments LLC, Continental Stock Transfer & Trust Company, and Deutsche Bank Securities, Inc. and Cowen and Company, LLC |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CHART ACQUISITION CORP. | ||
| Date: March 13, 2015 | By: | /s/ Michael LaBarbera |
| Name: Michael LaBarbera | ||
| Title: Chief Financial Officer | ||
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CHART ACQUISITION CORP.
Chart Acquisition Corp., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is “Chart Acquisition Corp.” The Corporation was originally incorporated under the name “Chart Acquisition Corp.” and the original certificate of incorporation was filed with the Secretary of State of the State of Delaware on July 22, 2011 and subsequently amended on July 10th, 2012 (as amended, the “Original Certificate”).
2. The Corporation’s Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on December 13, 2012.
3. The Corporation’s Amended and Restated Certificate of Incorporation (the “Prior Certificate”) was filed with the Secretary of State of Delaware on September 5, 2014.
4. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”) was duly adopted by the Board of Directors of the Corporation (the “Board”) and the stockholders of the Corporation in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate restates, integrates and further amends the provisions of the Prior Certificate.
6. Certain capitalized terms used in this Amended and Restated Certificate are defined where appropriate herein.
7. The text of the Prior Certificate is hereby restated and amended in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Chart Acquisition Corp.
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”). In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation including, but not limited to, effecting an acquisition, through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a “Business Combination”).
ARTICLE III
REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is Vcorp Services, LLC, 1811 Silverside Road, Wilmington DE 19810, New Castle County, and the name of the Corporation’s registered agent at such address is Vcorp Services LLC.
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 30,000,000 shares, consisting of 29,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and 1,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).
Section 4.2 Preferred Stock. Subject to Article IX of this Amended and Restated Certificate, the Preferred Stock may be issued from time to time in one or more series. The Board is hereby expressly authorized to provide for the issuance of shares of the Preferred Stock in one or more series and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designations (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions.
Section 4.3 Common Stock.
(a) Subject to the provisions in Article IX hereof, the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote. Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, the holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including a Preferred Stock Designation), the holders of the Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of the Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation).
(b) Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock and the provisions of Article IX hereof, the holders of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
(c) Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IX hereof, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of the Common Stock held by them.
Section 4.4 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock subject thereto may not be less than the par value thereof.
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ARTICLE V
BOARD OF DIRECTORS
Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws (“Bylaws”) of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Whole Board. For purposes of this Amended and Restated Certificate, “Whole Board” shall mean the total number of directors the Corporation would have if there were no vacancies.
(b) Subject to Section 5.5 hereof, the Board shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The Board is authorized to assign members of the Board already in office to Class I, Class II and Class III. The term of the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate; the term of the initial Class II Directors shall expire at the annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate; and the term of the initial Class III Directors shall expire at the third annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate. At each succeeding annual meeting of the stockholders of the Corporation, beginning with the first annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. Subject to Section 5.5 hereof, if the number of directors is changed, any increase or decrease shall be apportioned by the Board among the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors shorten the term of any incumbent director.
(c) Subject to Section 5.5 hereof, a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot.
Section 5.3 Newly Created Directorships and Vacancies. Subject to Section 5.5 hereof, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of the class of directors to which the new directorship was added or in which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Removal. Subject to Section 5.5 hereof, any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 5.5 Preferred Stock — Directors. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly provided by such terms.
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ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Whole Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws.
ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
Section 7.1 Meetings. Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Whole Board, and the ability of the stockholders to call a special meeting is hereby specifically denied.
Section 7.2 Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.3 Action by Written Consent. Subsequent to the consummation of the Corporation’s initial public offering (the “Offering”), any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such holders and may not be effected by written consent of the stockholders.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
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Section 8.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
ARTICLE IX
BUSINESS TRANSACTION REQUIREMENTS; EXISTENCE
Section 9.1 General.
(a) The provisions of this Article IX shall apply during the period commencing upon the effectiveness of this Amended and Restated Certificate and terminating upon the consummation of the Corporation’s initial Business Combination and may be amended to be effective prior to the consummation of the initial Business Combination only by the affirmative vote of the holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock; provided, that any amendment to this Amended and Restated Certificate required to be effective simultaneous with the Corporation’s initial Business Combination shall require only the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock. Neither the directors nor officers of the Corporation will propose any amendment to this Amended and Restated Certificate that would affect the substance or timing of the Corporation’s obligations as described in Section 9.2 with respect to the Redemption Rights of Public Stockholders.
(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, as initially filed with the Securities and Exchange Commission on October 13, 2011, as amended (the “Registration Statement”), shall be deposited in a trust account established for the benefit of the public stockholders (the “Trust Account”), pursuant to a trust agreement described in the Registration Statement. The funds held in the Trust Account will be held in a trust account maintained by Continental Stock Transfer & Trust Company, Inc. Purchasers of the Corporation’s Common Stock in the Offering or in the secondary market following the Offering (whether or not such purchasers are stockholders of the Corporation existing prior to the completion of the Offering (“Initial Stockholders”) or any of their affiliates or officers and directors of the Corporation) are referred to herein as “Public Stockholders.”
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Section 9.2 Redemption Rights.
(a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of shares of the Common Stock sold as part of the units in the Offering, including any shares of Common Stock sold as part of the underwriters’ over-allotment option (the “Offering Shares”) with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of,Sections 9.2(b) and 9.2(c) hereof (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”) for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof (the “Redemption Price”); provided, however, that the Corporation shall not redeem Offering Shares to the extent that such redemption would result in the Corporation’s failure to have net tangible assets (as determined in accordance with Rule 3a51-1 (g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in excess of $5 million (such limitation hereinafter called the “Redemption Limitation”). Notwithstanding anything to the contrary contained in this Amended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued in connection with the Offering.
(b) If the Corporation offers to redeem the Offering Shares other than in conjunction with a stockholder vote on an initial Business Combination pursuant to a proxy solicitation, the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial Business Combination, subject to lawfully available funds therefore and subject to any limitations (including but not limited to cash requirements) agreed to in connection with the negotiation of terms of any Business Combination, in accordance with the provisions of Section 9.2(a) hereof pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (such rules and regulations hereinafter called the “Tender Offer Rules”) which it shall commence prior to the consummation of the initial Business Combination and shall file tender offer documents with the Securities and Exchange Commission that contain substantially the same financial and other information about the initial Business Combination and the Redemption Rights as is required under Regulation 14A of the Exchange Act (such rules and regulations herein after called the “Proxy Solicitation Rules”), even if such information is not required under the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed initial Business Combination, or the Corporation decides to hold a stockholder vote on the proposed initial Business Combination for business or other legal reasons, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds therefore and subject to any limitations (including but not limited to cash requirements) agreed to in connection with the negotiation of terms of any initial Business Combination, in accordance with the provisions of Section 9.2(a) hereof in conjunction with a proxy solicitation pursuant to the Proxy Solicitation Rules at a price per share equal to the Redemption Price calculated in accordance with the following provision of this Section 9.2(b). In the event that the Corporation offers to redeem the Offering Shares pursuant to a tender offer in accordance with the Tender Offer Rules (and the Company has not otherwise withdrawn the tender offer), the Redemption Price per share of the Common Stock payable to holders of the Offering Shares tendering their Offering Shares pursuant to such tender offer shall be equal to the quotient obtained by dividing (i) the aggregate amount on deposit in the Trust Account as of two business days prior to the date of the commencement of the tender offer plus interest accrued from and after such date until two business days prior to the consummation of the initial Business Combination, less taxes payable and less any interest that the Corporation may withdraw in accordance with the terms of the Trust Agreement for working capital requirements, by (ii) the total number of then outstanding Offering Shares. If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on the proposed initial Business Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares exercising their Redemption Rights irrespective of whether they voted in favor of or against the Business Combination will be equal to the quotient obtained by dividing (a) the aggregate amount on deposit in the Trust Account as of two business days prior to the consummation of the Business Combination, less taxes payable and any interest that the Corporation may withdraw in accordance with the terms of the Trust Agreement for working capital requirements, by (b) the total number of then outstanding Offering Shares. Whether the Corporation conducts the redemption pursuant to the Tender Offer Rules or in conjunction with a proxy solicitation, the redemption price shall in no event be less than $10.00 per share of Common Stock (or $9.96 per share of Common Stock if the underwriters’ over-allotment option is exercised in full).
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(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13(d)(3) of the Exchange Act), shall be restricted from seeking Redemption Rights with respect to 20% or more of the Offering Shares.
(d) In the event that the Corporation has not consummated a Business Combination within 30 months from the date of the final prospectus related to the Offering, the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but in any event no later than ten (10) business days thereafter, subject to lawfully available funds therefor, redeem the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest but net of taxes payable or dissolution expenses and less any interest that the Corporation may withdraw for working capital, by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidation distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemptions, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed Business Combination only if (i) such initial Business Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination and (ii) the Redemption Limitation is not exceeded.
(f) Any stockholder of the Corporation holding Offering Shares who properly demanded that the Corporation redeem its Offering Shares, following the specific procedures for redemptions set forth by the Corporation in the proxy statement materials sent to the Corporation’s Public Stockholders relating to this amendment to the Prior Certificate (the “Extension Amendment”), may elect to have the Corporation redeem its Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (a) the aggregate amount on deposit in the Trust Account as of the record date for determination of stockholders entitled to vote on such amendment, less taxes payable and any interest that the Corporation may withdraw in accordance with the terms of that certain Amended and Restated Investment Management Trust Agreement, dated September 5, 2014, by and between the Corporation and Continental Stock Transfer & Trust Company (the “Trust Agreement”) for working capital requirements, by (b) the total number of then outstanding Offering Shares, which redemption will completely extinguish the rights of such stockholder (including the right to receive further liquidation distributions, if any), subject to applicable law. Payment of the amounts necessary to satisfy the redemption rights exercised pursuant to this Section 9.2(f) shall be made as promptly as practical after the approval of the Extension Amendment.
Section 9.3 Distributions from the Trust Account
(a) A Public Stockholder shall be entitled to receive funds from the Trust Account only (i) as provided in Section 9.2(d) hereof or (ii) as provided in Sections 9.2(a), 9.2(b) and 9.2(f) hereof. In no other circumstances shall a Public Stockholder have any right or interest of any kind in or to distributions from the Trust Account, and no stockholder other than a Public Stockholder shall have any interest in or to the Trust Account.
(b) Payment of the amounts necessary to satisfy the Redemption Rights exercised shall be made as promptly as practical after the consummation of the initial Business Combination and the delivery of shares by the applicable stockholder.
(c) Each Public Stockholder that does not exercise its Redemption Rights and has not redeemed its Offering Shares under Sections 9.2(f) hereof shall retain its interest in the Corporation and shall be deemed to have given its consent to the release of the remaining funds in the Trust Account to the Corporation, and following payment to any Public Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be released to the Corporation.
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(d) The exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such Public Stockholder following the specific procedures for redemptions set forth by the Corporation in any applicable tender offer or proxy statement materials sent to the Corporation’s Public Stockholders relating to the proposed initial Business Combination.
Section 9.4 Issuance of Shares or Debt Securities. Prior to the consummation of the Corporation’s initial Business Combination, the Corporation shall not issue any additional shares of capital stock of the Corporation or any debt securities that would entitle the holders thereof to receive funds from the Trust Account or vote on any Business Combination proposal.
Section 9.5 Transactions with Affiliates.
(a) In the event the Corporation enters into an agreement with respect to a Business Combination with a target business that is affiliated with an Initial Stockholder, or the directors or officers of the Corporation, then the Corporation, or a committee of directors of the Corporation who do not have interest in the transaction, shall obtain an opinion from an independent investment banking firm that is a member of the Financial Industry Regulatory Authority that such Business Combination is fair to the stockholders of the Corporation from a financial point of view.
(b) Prior to the consummation of any transaction with any affiliate of the Corporation, such transaction must be approved by a majority of the members of the Board who do not have an interest in the transaction, and such directors had access, at the Corporation’s expense, to the Corporation’s attorney’s or independent legal counsel, unless the disinterested directors determine that the terms of such transaction are no less favorable to the Corporation than those that would be available to the Corporation with respect to such a transaction from unaffiliated third parties.
Section 9.6 No Transactions with Other Blank Check Companies. The Corporation shall not enter into a Business Combination with another blank check company or a similar company with nominal operations.
ARTICLE X
CORPORATE OPPORTUNITY
The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors or in circumstances where the application of any such doctrine would conflict with any fiduciary duties or contractual obligations they may have currently or in the future.
ARTICLE XI
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate (including any Preferred Stock Designation), in the manner now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, except as set forth in Article VIII, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article XI; provided, however, that Article IX of this Amended and Restated Certificate may be amended only as provided therein.
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IN WITNESS WHEREOF, Chart Acquisition Corp. has caused this Amended and Restated Certificate to be duly executed in its name and on its behalf by its Chief Financial Officer this 12th day of March, 2015.
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CHART ACQUISITION CORP. |
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| By: | /s/ Michael LaBarbera | |
| Name: Michael LaBarbera | ||
| Title: Chief Financial Officer and Secretary | ||
9
Exhibit 10.1
SECOND AMENDED AND RESTATED INVESTMENT MANAGEMENT TRUST AGREEMENT
This second amended and restated investment management trust agreement (“Agreement”) is made as of March 11, 2015, by and between Chart Acquisition Corp. (the “Company”), a Delaware corporation and Continental Stock Transfer & Trust Company (the “Trustee”) located at 17 Battery Place, New York, New York 10004. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Registration Statement.
WHEREAS, the Company’s initial registration statement, as amended, on Form S-1, No. 333-177280 (the “Registration Statement”), for its initial public offering of securities (the “IPO”) has been declared effective as of December 13, 2012 by the Securities and Exchange Commission (the “Commission”);
WHEREAS, Deutsche Bank Securities, Inc. and Cowen and Company, LLC are acting as the representatives of the underwriters in the IPO (the “Underwriters”) pursuant to an underwriting agreement (the “Underwriting Agreement”);
WHEREAS, simultaneously with the IPO, Chart Acquisition Group LLC, a Delaware limited liability company, purchased an aggregate of 231,250 placement units (“Placement Units”) for an aggregate purchase price of $2,312,500. Each Placement Unit consists of one share of Common Stock (as defined below) and one warrant to purchase one share of Common Stock;
WHEREAS, simultaneously with the IPO, Joseph Wright purchased an aggregate of 12,500 Placement Units for an aggregate purchase price of $125,000;
WHEREAS, simultaneously with the IPO, Cowen Overseas Investment LP, a Cayman Islands limited partnership and an affiliate of Cowen and Company, LLC, purchased an aggregate of 131,250 Placement Units for an aggregate purchase price of $1,312,500;
WHEREAS, as described in the Registration Statement, and in accordance with the Company’s Certificate of Incorporation, (as amended, the “Certificate of Incorporation”), $75,000,000 of the gross proceeds of the IPO and sale of the Placement Units were previously delivered to the Trustee to be deposited and held in a trust account (the “Trust Account”) for the benefit of the Company and the holders of the Company’s common stock, par value $.0001 per share (the “Common Stock”), issued in the IPO (the aggregate amount to be delivered to the Trustee will be referred to herein as the “Property,” the common stockholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Stockholders,” and the Public Stockholders and the Company will be referred to together as the “Beneficiaries”), pursuant to the investment management trust agreement as of December 13, 2012 (the “Original Agreement”);
WHEREAS, pursuant to certain provisions in the Company’s Certificate of Incorporation, the Public Stockholders may, regardless of how such stockholder votes in connection with the Company’s initial acquisition, through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a “Business Combination”), demand the Company redeem such Public Stockholder’s Common Stock into cash or redeem such Common Stock pursuant to a tender offer pursuant to the Rule 13e-4 and Regulation 14E of the Commission, as applicable and based upon the Company’s choice of proceeding under the proxy rules or tender offer rules, each as promulgated by the Commission (“Redemption Rights”);
WHEREAS, pursuant to the Underwriting Agreement, a portion of the Property equal to 3.125% of the gross proceeds of the IPO will be payable to the Underwriters in the event of consummation of a Business Combination (the “Deferred Fee”);
WHEREAS, pursuant to the Underwriting Agreement, the Deferred Fee is payable solely upon the consummation of the Company’s Business Combination and pursuant to the terms thereof;
WHEREAS, on September 5, 2014, the parties hereto amended and restated the Original Agreement in connection with the extension of the date before which the Company must complete a Business Combination from September 13, 2014 to March 13, 2015 (the “Current Agreement”);
WHEREAS, the Company has sought the approval of its Public Stockholders at a meeting of its stockholders (the “Stockholder Meeting”) to: (i) extend the date before which the Company must complete a business combination from March 13, 2015 (the “Current Termination Date”) to June 13, 2015 (the “Extended Termination Date”), and provide that the date for cessation of operations of the Company if the Company has not completed a business combination would similarly be extended, (ii) allow holders of the Company’s public shares to redeem their public shares for a pro rata portion of the funds available in the Trust Account, and authorize the Company and the Trustee to disburse such redemption payments (together with clause (i), the “Extension Amendment”) and (iii) amend and restate the Current Agreement to permit distributions from the trust account to pay public stockholders properly demanding redemption in connection with the Extension Amendment; and extend the date on which to commence liquidating the trust account in the event the Company has not consummated a business combination from the Current Termination Date to the Extended Termination Date (the “Trust Amendment”);
WHEREAS, holders of at least sixty-five percent (65%) of the Company’s outstanding shares of common stock approved the Trust Amendment and the Extension Amendment; and
WHEREAS, the parties desire to amend and restate the Current Agreement to, among other things, reflect amendments to the Current Agreement contemplated by the Trust Amendment.
NOW THEREFORE, IT IS AGREED:
1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement, in Trust Accounts which shall be established by the Trustee at JP Morgan Chase Bank, N.A. and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the written instruction of the Company, to invest and reinvest the Property in U.S. government treasury bills with a maturity of 180 days or less, and/or money market funds meeting certain conditions of Rule 2a-7 under the Investment Company Act of 1940, as amended, and that invest solely in U.S. Treasuries, as determined by the Company.
(d) Collect and receive, when due, all principal and interest income arising from the Property, which shall become part of the “Property,” as such term is used herein;
(e) Notify the Company of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of its tax returns;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when reasonably indemnified by the Company and instructed by the Company to do so, so long as the Company shall have advanced funds sufficient to pay the Trustee’s expenses incident thereto.
(h) Render to the Company, and to such other person as the Company may instruct, monthly written statements of the activities of, and amounts in, the Trust Account, reflecting all receipts and disbursements of the Trust Account; and
(i) Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter (“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B hereto, signed on behalf of the Company by an executive officer and complete the liquidation of the Trust Account and distribute the Property in the Trust Account only as directed by the Company; provided, however, that in the event that a Termination Letter has not been received by the Trustee by 11:59 P.M. New York City time on the 30-month anniversary of the date of the final prospectus relating to the IPO, the Trust Account shall be liquidated as soon as practicable thereafter in accordance with the procedures set forth in the Termination Letter attached as Exhibit B hereto and distributed to the Public Stockholders of record at the close of trading (4:00 P.M. New York City time) on such 30 month anniversary date. For the purposes of clarity, any transmission of such Termination Letter electronically, whether by facsimile, electronic mail (e-mail), PDF or otherwise, shall constitute an original of such termination Letter hereunder.
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2. Limited Distributions of Income from Trust Account.
(a) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C, the Trustee shall distribute to the Company by wire transfer from the income collected on the Property the amount necessary to cover any tax obligation owed by the Company.
(b) The Company may withdraw funds from the Trust Account for working capital purposes by delivery of Exhibit C to the Trustee. The distributions referred to herein shall be made only from income collected on the Property.
(c) The Trustee shall, only after and promptly after receipt of, and only in accordance with, the terms of a letter, in a form substantially similar to that attached hereto as Exhibit E, signed on behalf of the Company by an executive officer and in accordance with the written instruction of the Company, disburse to the Public Stockholders of record as of the record date for the Stockholder Meeting pursuant to which the Trust Amendment and the Extension Amendment were approved who (A) elected to exercise their redemption rights in connection with the Extension Amendment and the Trust Amendment and (B) tendered their stock certificate(s) in accordance with the provisions set forth in the proxy statement for the Stockholder Meeting, the amount indicated by the Company as required to pay such Public Stockholders. For the purposes of clarity, any transmission of such letter electronically, whether by facsimile, electronic mail (e-mail), PDF or otherwise, shall constitute an original of such letter hereunder.
(d) In no event shall the payments authorized by Sections 2(a) and 2(b) cause the amount in the Trust Account to fall below the amount initially deposited into the Trust Account. Except as provided in Sections 2(a), 2(b) and 2(c) above, no other distributions from the Trust Account shall be permitted except in accordance with Section 1(i) hereof.
(e) The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to such funds, and the Trustee has no responsibility to look beyond said request.
3. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:
(a) Give all instructions to the Trustee hereunder in writing or the electronic equivalent, signed by the Company’s President, Chief Executive Officer or Chief Financial Officer, and as specified in Section 1(i). In addition, except with respect to its duties under Sections 1(i), 2(a), 2(b) and 2(c) above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal, electronic or telephonic advice or instruction which it in good faith believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject to the provisions of Section 5, hold the Trustee harmless and indemnify the Trustee from and against, any and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any action taken by the trustee hereunder or any claim, potential claim, action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustee’s gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this section, it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which consent shall not be unreasonably withheld. The Company may participate in such action with its own counsel;
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(c) Pay the Trustee the fees set forth on Schedule A hereto;
(d) In connection with the vote, if any, of the Company’s stockholders regarding a Business Combination, provide to the Trustee an affidavit or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating stockholder votes verifying the vote of the Company’s stockholders regarding such Business Combination; and
(e) In the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to Section 1(i), the Company agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement.
(f) Promptly after the Deferred Fee shall become determinable on a final basis, to provide the Trustee notice in writing (with a copy to the Underwriters) of the total amount of the Deferred Fee.
4. Limitations of Liability. The Trustee shall have no responsibility or liability to:
(a) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this agreement and that which is expressly set forth herein;
(b) Take any action with respect to the Property, other than as directed in Sections 1 and 2 hereof and the Trustee shall have no liability to any party except for liability arising out of its own gross negligence or willful misconduct;
(c) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received written instructions from the Company given as provided herein to do so and the Company shall have advanced to it funds sufficient to pay any expenses incident thereto;
(d) Change the investment of any Property, other than in compliance with Section 1(c);
(e) Refund any depreciation in principal of any Property;
(f) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(g) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee, which counsel may be Company counsel), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(h) Verify the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by the Company or any other action taken by it is as contemplated by the Registration Statement; and
(i) Prepare, execute and file tax reports, income or other tax returns and pay any taxes with respect to income and activities relating to the Trust Account, regardless of whether such tax is payable by the Trust Account or the Company (including but not limited to income tax obligations), it being expressly understood that as set forth in Section 2(a), if there is any income or other tax obligation relating to the Trust Account or the Property in the Trust Account, as determined from time to time by the Company and regardless of whether such tax is payable by the Company or the Trust, at the written instruction of the Company, the Trustee shall make funds available in cash from the Property in the Trust Account an amount specified by the Company as owing to the applicable taxing authority, which amount shall be paid directly to the Company by electronic funds transfer, account debit or other method of payment, and the Company shall forward such payment to the taxing authority;
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(j) Pay or report any taxes on behalf of the Trust Account other than pursuant to Section 2(a).
(k) Verify calculations, qualify or otherwise approve Company requests for distributions pursuant to Sections 1(i), 2(a), 2(b) or 2(c).
5. No Right of Set-Off. The Trustee waives any right of set-off or any right, title, interest or claim of any kind that the Trustee may have against the Property held in the Trust Account. In the event the Trustee has a claim against the Company under this Agreement, including, without limitation, under Section 3(b), the Trustee will pursue such claim solely against the Company and not against the Property held in the Trust Account.
6. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event the Company does not locate a successor trustee within ninety (90) days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of Section 1(i) hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Section 3(b).
7. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds transfers, the Trustee will rely upon all information supplied to it by the Company, including, account names, account numbers, and all other identifying information relating to a beneficiary, beneficiary’s bank or intermediary bank. The Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the wire.
(b) This 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. It may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Sections 1(i), 2(a), 2(b), 2(c) and 2(d) (which may not be modified, amended or deleted without the affirmative vote of at least 65% of the then outstanding shares of Common Stock; provided that no such amendment will affect any Public Stockholder who has otherwise either (i) indicated his election to redeem his shares of Common Stock in connection with a stockholder vote sought to amend this Agreement or (ii) not consented to any amendment to this Agreement to extend to the time he would be entitled to a return of his pro rata amount in the Trust Account), this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) by a writing signed by each of the parties hereto. As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives the right to trial by jury and the right to set-off as a defense. The Trustee may request an opinion from Company counsel as to the legality of any proposed amendment as a condition to its executing such amendment.
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(d) The parties hereto consent to the personal jurisdiction and venue of any state or federal court located in the City of New York, Borough of Manhattan, for purposes of resolving any disputes hereunder.
(e) Unless otherwise specified herein, any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt or delivery confirmation requested), by hand delivery or by electronic or facsimile transmission:
if to the Trustee, to:
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Frank A. DiPaolo, CFO
Fax No.: (212) 509-5150
if to the Company, to:
Chart Acquisition Corp.
c/o The Chart Group, L.P.
555 5th Avenue, 19th Floor,
New York, NY 10017
Attention: Michael LaBarbera
Fax No.: (212) 350-8299
with a copy to (which shall not constitute notice):
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Douglas S. Ellenoff, Esq.
Fax No: (212)-370-7889
(e) This Agreement may not be assigned by the Trustee without the prior consent of the Company.
(f) Each of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance. In the event the Trustee has a claim against the Company under this Agreement, the Trustee will pursue such claim solely against the Company and not against the Property held in the Trust Account.
(g) This Agreement is the joint product of the Trustee and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto
(h) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or electronic transmission shall constitute valid and sufficient delivery thereof.
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(i) The Company has also retained the Trustee to serve as its share transfer agent and warrant agent and shall pay the fees set forth in Schedule A for such services. Additionally, the Trustee has agreed to provide all services, including, but not limited to: the mailing of proxy or tender documents to registered holders, all wires in connection with the Business Combination (including the exercise of Redemption Rights) and maintaining the official record of the exercise of Redemption Rights and stockholder voting (if applicable).
[Signature page follows]
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IN WITNESS WHEREOF, the parties have duly executed this Second Amended and Restated Investment Management Trust Agreement as of the date first written above.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, | ||
| as Trustee | ||
| By: | /s/ Frank A. Di Paolo | |
| Name: | Frank A. Di Paolo | |
| Title: | Vice President | |
| CHART ACQUISITION CORP. | ||
| By: | /s/ Michael LaBarbera | |
| Name: | Michael LaBarbera | |
| Title: | Chief Financial Officer | |
[Signature page to Second Amended and Restated Investment Management Trust Agreement]
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SCHEDULE A
| Fee Item | Time and method of payment | Amount (1) | ||||
| Set-up fee | Consummation of IPO by wire transfer of funds | $ | 3,000 | |||
| Annual trustee fee | Upon execution of the IMTA and at each anniversary | $ | 10,000.00 | |||
| All services in connection with a Business Combination and/or all services in connection with liquidation of Trust Account if no Business Combination. | Upon final liquidation of the Trust Account but, upon liquidation if no Business Combination, only from interest earned or from the Company by wire transfer of funds | Prevailing rates after consultation with the issuer and its counsel at the time of combination. | ||||
(1) Any amounts owed by the Company are subject in their entirety to the provisions of Section 5 of this Agreement.
EXHIBIT A
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [ ] - Termination Letter
Gentlemen:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Chart Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company, dated as of [ ], 2012 (“Trust Agreement”), this is to advise you that the Company has entered into an agreement with [ ] (the “Target Businesses”) to consummate a Business Combination with the Target Businesses on or before [ ] (the “Consummation Date”). This letter shall serve as the 48 hour notice required with respect to the Business Combination. Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments on [ ] and to transfer the entire proceeds to the above referenced Trust checking account at [ ] to the effect that, on the Consummation Date, all of the funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in the Trust checking account awaiting distribution, the Company will not earn any interest or dividends.
On or before the Consummation Date: (i) counsel for the Company shall deliver to you (a) an affidavit which verifies the vote of the Company’s stockholders in connection with the Business Combination1 and (b) written notification that the Business Combination has been consummated or will, concurrently with your transfer of funds to the accounts as directed by the Company, be consummated (ii) the Company shall deliver to you written instructions with respect to the transfer of the funds held in the Trust Account (“Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the counsel’s letter and the Instruction Letter in accordance with the terms of the Instruction Letter. In the event certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and be distributed after the Consummation Date to the Company or be distributed immediately and the penalty incurred. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof, the Trust Agreement shall be terminated.
1 Only if stockholder vote held
In the event the Business Combination is not consummated by 11:59 p.m. on the Consummation Date and we have not notified you of a new Consummation Date, then upon the Trustee's receipt of the Company's written instruction, the funds held in the Trust checking account shall be reinvested as provided for by the Trust Agreement as soon as practicable thereafter.
Very truly yours,
CHART ACQUISITION CORP.
| By: | ||
| Name: | ||
| Title: |
| cc: | Deutsche Bank Securities, Inc. | |
| Cowen and Company, LLC |
EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [ ] - Termination Letter
Gentlemen:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Chart Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of ________, 2012 (the “Trust Agreement”), this is to advise you that the Company has been unable to effect a Business Combination with a Target Company within the 30-month anniversary of the date of the final prospectus relating to the IPO.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account on [ ] and to transfer the total proceeds to the Trust checking account at [ ] for distribution to the stockholders. The Company has selected [ ] as the record date for the purpose of determining the stockholders entitled to receive their pro rata share of the liquidation proceeds. You agree to be the paying agent of record and in your separate capacity as paying agent to distribute said funds directly to the Company’s stockholders (other than with respect to the initial, or insider shares) in accordance with the terms of the Trust Agreement, the Certificate of Incorporation of the Company and the fees set forth on Schedule A to the Trust Agreement. Upon the distribution of all of the funds in the Trust Account, your obligations under the Trust Agreement shall be terminated.
Very truly yours,
CHART ACQUISITION CORP.
| By: | ||
| Name: | ||
| Title: |
| cc: | Deutsche Bank Securities, Inc. | |
| Cowen and Company, LLC |
EXHIBIT C
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place, 8th Floor
New York, New York 10004
Attn: Steven Nelson and Frank DiPaolo
Re: Trust Account No. [ ]
Gentlemen:
Pursuant to Section 2(a) or 2(b) of the Investment Management Trust Agreement between Chart Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company, dated as of ___________, 2012 (“Trust Agreement”), the Company hereby requests that you deliver to the Company $_______ of the interest income earned on the Property as of the date hereof. The Company needs such funds [to pay for the tax obligations as set forth on the attached tax return or tax statement] or [for working capital purposes]. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
CHART ACQUISITION CORP.
| By: | ||
| Name: | ||
| Title: |
| cc: | Deutsche Bank Securities, Inc. (“DB”) | |
| Cowen and Company, LLC |
EXHIBIT D
| AUTHORIZED INDIVIDUAL(S) FOR TELEPHONE CALL BACK | AUTHORIZED TELEPHONE NUMBER(S) | |
| Company: | ||
Chart Acquisition Corp. 555 5th Avenue, 19th Floor, New York, NY 10017 Attention: Michael LaBarbera |
(212) 350-8275 | |
Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, 11th Floor New York, New York 10105 Attn: Douglas S. Ellenoff, Esq. |
(212) 370-1300 | |
| Trustee: | ||
Continental Stock Transfer & Trust Company 17 Battery Place New York, New York 10004 Attn: Frank Di Paolo, CFO |
(212) 845-3270 |
EXHIBIT E
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Trust Account No. [ ]
Gentlemen:
Pursuant to Section 2(c) of the Investment Management Trust Agreement between Chart Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of December 13, 2012 (the “Trust Agreement”), this is to advise you that in connection with the Extension Amendment and the Trust Amendment and in accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate $_____ of the Trust Account on March __, 2015 and to transfer $_____ of the proceeds of the Trust to the Trust checking account at [ ] for distribution to the shareholders that have requested redemption of their shares in connection with the Extension Amendment and the Trust Amendment. It is acknowledged and agreed that while such funds are on deposit in the Trust checking account awaiting distribution, the Company will not earn any interest or dividends on such funds.
On or before the date for liquidation referenced above the Company shall deliver to you (a) an affidavit which verifies the vote of the Company’s stockholders in connection with the Extension Amendment and the Trust Amendment, (b) written notification that the Extension Amendment and the Trust Amendment are effective, and (c) written instructions with respect to the transfer of the funds held in the Trust Account (“Instruction Letter”). You agree to be the paying agent of record and in your separate capacity as paying agent to distribute said funds on the date for liquidation referenced above directly to the Company’s stockholders (other than with respect to the initial, or insider shares) in accordance with the Instruction Letter, terms of the Trust Agreement, the Certificate of Incorporation of the Company and the fees set forth on Schedule A to the Trust Agreement. In the event certain deposits held in the Trust Account may not be liquidated on such date without penalty, you will notify the Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account or be distributed immediately and the penalty incurred.
[Signature page follows]
Very truly yours,
CHART ACQUISITION CORP.
| By: | ||
| Name: | ||
| Title: |
| cc: | Deutsche Bank Securities, Inc. | |
| Cowen and Company, LLC |
Exhibit 10.2
SECOND AMENDED AND RESTATED WARRANT AGREEMENT
THIS SECOND AMENDED AND RESTATED WARRANT AGREEMENT (this “Agreement”), dated as of March 11, 2015, is by and between Chart Acquisition Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”).
WHEREAS, the Company has entered into that certain Third Amended and Restated Unit Subscription Agreement, dated November 1, 2012, with Chart Acquisition Group LLC, a Delaware limited liability company (the “Sponsor”) pursuant to which the Sponsor purchased an aggregate of 231,250 Units (as defined below) for an aggregate purchase price of $2,312,500 (“Placement Units”), each Unit consisting of one share of Common Stock (as defined below) (“Placement Shares”) and one warrant to purchase one Placement Share (the “Placement Warrants”) of the Company, bearing the legend set forth in Exhibit B hereto;
WHEREAS, the Company has entered into that certain Third Amended and Restated Unit Subscription Agreement, dated November 1, 2012, with Cowen Overseas Investment LP, a Cayman Islands limited partnership (together with its affiliates, “Cowen”) pursuant to which Cowen purchased an aggregate of 131,250 Placement Units of the Company for an aggregate purchase price of $1,312,500, bearing the legend set forth in Exhibit B hereto;
WHEREAS, the Company has entered into that certain Second Amended and Restated Unit Subscription Agreement, dated November 1, 2012, with Joseph R. Wright (“Wright”) pursuant to which Wright purchased an aggregate of 12,500 Placement Units of the Company for an aggregate purchase price of $125,000, bearing the legend set forth in Exhibit B hereto;
WHEREAS, the Company engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one share of Common Stock and one Public Warrant (as defined below) (the “Public Units”, and together with the Placement Units, the “Units”) and, in connection therewith, has determined to issue and deliver up to 8,625,000 Warrants (which included up to 1,125,000 warrants subject to a forty-five (45) day over-allotment option granted to the underwriters (the “Over allotment Option”) which expired unexercised) to investors in the Offering (the “Public Warrants” and, together with the Placement Warrants, the “Warrants”), each such Warrant evidencing the right of the holder thereof to purchase one share of common stock of the Company, $0.0001 par value per share (the “Common Stock”), for $11.50 per share, subject to adjustment as described herein;
WHEREAS, in connection with the Offering, Cowen, Mr. Wright and the Sponsor have agreed to purchase in the aggregate up to 3,750,000 Public Warrants (subject to reduction as described in that certain second amended and restated escrow agreement with the Warrant Agent at $0.60 per warrant (the “Business Combination Repurchased Public Warrants”)) in a tender offer to occur after the Company’s announcement of an initial Business Combination;
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S- 1, No. 333-177280 (the “Registration Statement”) and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Public Units, the Public Warrants and Common Stock included in the Public Units;
WHEREAS, the Company and the Warrant Agent entered into the Warrant Agreement on December 13, 2012;
WHEREAS, the Company and the Warrant Agent entered into the Amended and Restated Warrant Agreement on September 12, 2014 (the “Current Agreement”);
WHEREAS, Cowen, Mr. Wright and the Sponsor acquired 7,700 Public Warrants in a tender offer consummated on September 12, 2014;
WHEREAS, the requisite number of stockholders of the Company have approved an amendment to the Company’s second amended and restated certificate of incorporation (the “Extension Amendment”) to, among other things, extend the date before which the Company must complete a business combination from March 13, 2015 (the “Original Termination Date”) to June 13, 2015 (the “Extended Termination Date”);
WHEREAS, in connection with the Extension Amendment, Cowen, Mr. Wright and the Sponsor have agreed to purchase in the aggregate up to 7,492,300 Public Warrants (as defined below) at $0.30 per warrant (the “Extension Repurchased Public Warrants”) in a tender offer which is expected to close on or about the Original Termination Date (the Extension Repurchased Public Warrants together with the Business Combination Repurchased Public Warrants, the “Repurchased Public Warrants”); and
WHEREAS, the Company desires to amend and restate the Current Agreement to provide, among other things, that the Expiration Date of each Warrant is extended so that the Warrants will expire if the Company has not completed a business combination by the Extended Termination Date.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
| 1. | Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement. |
| 2. | Warrants. |
2.1. Form of Warrant. Each Warrant shall be issued in registered form only and shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Effect of Countersignature. Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate (as defined below) made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4. Detachability of Warrants. The Common Stock and Public Warrants comprising the Public Units shall begin separate trading on the 52nd day following the date of the Prospectus, or, if such 52nd day is not on a Business Day (a “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City), then on the immediately succeeding Business Day following such date (the “Detachment Date”) unless Cowen and Company, LLC informs the Company of their decision to allow earlier separate trading, but in no event shall the Common Stock and the Public Warrants comprising the Units be separately traded until (A) the Company has filed a Current Report on Form 8-K with the SEC containing an audited balance sheet reflecting its receipt of the gross proceeds of the Offering and (B) the Company issues a press release and files with the Commission a current report on Form 8-K announcing when such separate trading shall begin; provided, that, if the Over-allotment Option is exercised following the filing of the initial Current Report on Form 8-K, a second or amended Current Report on Form 8-K shall be filed by the Company to provide updated financial information to reflect the exercise of the Over-allotment Option.
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2.5. Warrant Attributes.
2.5.1. Placement Warrants and Repurchased Public Warrants. The Placement Warrants and Repurchased Public Warrants shall be identical to the Public Warrants, except that (i) so long as they are held by Wright, the Sponsor or Cowen, members of the Sponsor, partners of Cowen or any of their Permitted Transferees (as defined below), the Placement Warrants and Repurchased Public Warrants (x) may be exercised for cash or on a cashless basis, pursuant to subsection 3.3.1(c) hereof, (y) may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination (as defined below); provided that any Placement Warrants held by Cowen or any of its “related persons” under the rules of the Financial Industry Regulatory Authority shall not be sold during the Offering or sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of any such Placement Warrants by any person for a period of 180 days immediately following the date of effectiveness of the Registration Statement, and (z) shall not be redeemable by the Company, and (ii) the Placement Warrants issued to Cowen, so long as such Placement Warrants are held by Cowen or any of its “related persons” under the rules of the Financial Industry Regulatory Authority (“Cowen Held Warrants”), shall expire five years from the date of effectiveness of the Registration Statement (not five years from the consummation of the initial Business Combination) or earlier upon liquidation; provided, however, that in the case of the Placement Warrants and Repurchased Public Warrants and any shares of Common Stock held by Wright, the Sponsor, members of the Sponsor or partners of Cowen and issued upon exercise of the Placement Warrants and Repurchased Public Warrants may be transferred by Wright, the Sponsor, members of the Sponsor or partners of Cowen:
(a) as gift to a member of Sponsor, a partner of Cowen or an entity owned or controlled by Wright, their immediate family or to a trust, the beneficiary of which is a member of Wright’s immediate family, the Sponsor or partner of Cowen and their immediate family or to a charitable organization,
(b) to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors, any member of Sponsor or partners of Cowen or any of their respective affiliates,
(c) by virtue of the laws of descent and distribution upon death of Wright, one of the members of the Sponsor or partners of Cowen,
(d) pursuant to a qualified domestic relations order,
(e) by virtue of the laws of the jurisdiction of incorporation or formation, as applicable, of the Sponsor or Cowen, the Sponsor’s limited liability company agreement upon dissolution of the Sponsor or, in the case of Cowen, by virtue of the laws of the Cayman Islands or its controlling limited partnership agreement or by any member of Sponsor or partner of Cowen upon dissolution of such entity,
(f) in the event of the Company’s liquidation prior to the completion of the initial Business Combination, or
(g) in the event that, subsequent to the consummation of the initial Business Combination, the Company consummates a merger, stock exchange or other similar transaction that results in all of the holders of the Company’s equity securities issued in the Offering having the right to exchange their shares of Common Stock for cash, securities or other property; provided, however, that, in the case of clauses (a) through (e), these transferees (the “Permitted Transferees”) enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.
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| 3. | Terms and Exercise of Warrants. |
3.1. Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share at which a share of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days, provided, that the Company shall provide at least twenty (20) days prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.
3.2. Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the later of: (i) the date that is thirty (30) days after the first date on which the Company completes an acquisition, through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a “Business Combination”), or (ii) the date that is twelve (12) months from the date of the closing of the Offering, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) with respect to any warrant other than a Cowen Held Warrant, the date that is five (5) years after the date on which the Company completes its initial Business Combination and, with respect to a Cowen Held Warrant, the date that is five (5) years after the date on which the Registration Statement is declared effective by the Commission, (y) the liquidation of the Company, or if the Company fails to consummate a Business Combination thirty (30) months from the effective date of the Registration Statement, or (z) other than with respect to the Placement Warrants and the Repurchased Public Warrants, the Redemption Date (as defined below) as provided in Section 6.2 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement. Except with respect to the right to receive the Redemption Price (other than with respect to a Placement Warrant) in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Placement Warrant or a Repurchased Public Warrant in the event of a redemption) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such shares of Common Stock, as follows:
(a) by wire transfer of immediately available funds in good certified check or good bank draft payable to the order of the Company;
(b) with respect to any Placement Warrant or Repurchased Public Warrant exercised on a “cashless basis”, so long as such Placement Warrant or Repurchased Public Warrant is held by Wright, the Sponsor, a member of the Sponsor, Cowen or partners of Cowen or their Permitted Transferees, by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value”, as defined in this subsection 3.3.1(c), by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Fair Market Value” shall mean the last sale price of the Common Stock on the date on which notice of exercise of the Warrant is sent to the Warrant Agent, in the event notice is received after market close it shall mean the last sale price the next trading day; or
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(c) as provided in Section 7.4 hereof.
3.3.2. Issuance of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a certificate or certificates for the number of full shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any Common Stock pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Common Stock underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4. No Warrant shall be exercisable and the Company shall not be obligated to issue Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the Registered Holder of the Warrants. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the Common Stock underlying such Unit. In no event will the Company be required to net cash settle the Warrant exercise.
3.3.3. Valid Issuance. All Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance. Each person in whose name any certificate for Common Stock is issued shall for all purposes be deemed to have become the holder of record of such Common Stock on the date on which the Warrant was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books are open.
3.3.5. Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; provided, however, that no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent Form 10-K, Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company, or (3) any other notice by the Company or Continental Stock Transfer & Trust Company (the “Transfer Agent”) setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
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| 4. | Adjustments. |
4.1. Stock Dividends.
4.1.1. Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock, or by a split-up of the Common Stock or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the outstanding shares of Common Stock. A rights offering to holders of the Common Stock entitling holders to purchase Common Stock at a price less than the “Fair Market Value” (as defined below) shall be deemed a stock dividend of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) multiplied by (ii) one (1) minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Common Stock, in determining the price payable for Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means, for purposes of this subsection 4.1.1 only, the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the Common Stock trades on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.1.2. Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Common Stock on account of such Common Stock (or other shares of the Company’s capital stock into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Common Stock in connection with a proposed initial Business Combination, (d) as a result of the repurchase of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders of the Company for approval or (e) in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
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4.2. Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3. Adjustments in Exercise Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.4. Replacement of Securities upon Reorganization, etc. If, at any time while any Warrant is outstanding (i) the Company effects (A) any merger of the Company with (but not into) another person, in which stockholders of the Company measured immediately prior to the consummation of such transaction, consequently own less than a majority of the outstanding stock of the surviving entity, or (B) any merger or consolidation of the Company into another person, (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer approved or authorized by the Company’s Board of Directors is completed pursuant to which holders of at least a majority of the outstanding shares of Common Stock tender or exchange their shares for other securities, cash or property, or (iv) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the shares of Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered elsewhere in this Section 4) (in any such case, a “Fundamental Transaction”), then the Registered Holder shall have the right thereafter to receive, upon exercise of such Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of shares underlying the Warrants then issuable upon exercise in full of such Warrant without regard to any limitations on exercise contained herein (the “Alternate Consideration”), and the Registered Holder shall no longer have the right to receive such shares upon exercise of such Warrant. Notwithstanding anything to the contrary contained herein, the provisions of this section shall not be deemed to apply to, and no Fundamental Transaction shall be deemed to have occurred in connection with, any Business Combination. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or person shall assume the obligation to deliver to the Registered Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Registered Holder may be entitled to receive, and the other obligations under the Warrant. The provisions of this section 4.4 shall similarly apply to subsequent transactions of an analogous type to any Fundamental Transaction. Notwithstanding the foregoing, in the event of a Fundamental Transaction, then at the request of the Registered Holder delivered at any time through the date that is 30 days after the public disclosure of the consummation of such Fundamental Transaction by the Company pursuant to a Current Report on Form 8-K filed with the SEC, the Company (or the successor entity to the Company) shall purchase such Warrant from the Registered Holder by paying to the Registered Holder, within five Trading Days after such request, cash in an amount equal to the Black Scholes Value of the remaining unexercised portion of such Warrant on the date of such Fundamental Transaction. Any Registered Holder that receives cash pursuant to the immediately preceding sentence shall not receive any Alternate Consideration. For purposes hereof, “Black Scholes Value” means the value of the Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg using (i) a price per share of Common Stock equal to the Closing Sale Price of the Common Stock for the Trading Day immediately preceding the date of consummation of the applicable Fundamental Transaction, (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Warrant as of such date of request, and (iii) an expected volatility equal to the greater of (A) forty percent (40%) and (B) the 30-day volatility obtained from the HVT function on Bloomberg determined as of the Trading Day immediately following the announcement of the Fundamental Transaction, (iv) a “Style” of “Warrant” and (v) a “Warrant type” of “Capped” where “Call cap” equals $17.50, subject to adjustment under Section 4.1.
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4.5. Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6. No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number, the number of the shares of Common Stock to be issued to such holder.
4.7. Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.8. Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
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| 5. | Transfer and Exchange of Warrants. |
5.1. Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Placement Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate for a fraction of a warrant.
5.4. Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6. Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date.
| 6. | Redemption. |
6.1. Redemption. Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.2 below, at the price of $0.01 per Warrant (the “Redemption Price”); provided, that the last sales price of the Common Stock reported has been at least $17.50 per share (subject to adjustment in compliance with Section 4 hereof), on each of twenty (20) trading days within the thirty (30) trading-day period ending on the third Business Day prior to the date on which notice of the redemption is given; provided further, in the event there was no actual trading of the Warrants for any day within such 30-Day trading period, then the closing bid price on such day must be at least $17.50 per share to count; and, provided further that there is an effective registration statement covering the Common Stock issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.2 below).
6.2. Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (such 30-day period, the “Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice.
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6.3. Exercise After Notice of Redemption. The Warrants may be exercised at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4. Exclusion of Placement Warrants or Repurchased Public Warrants. The Company agrees that the redemption rights provided in this Section 6 shall not apply to the Placement Warrants or Repurchased Public Warrants if at the time of the redemption such Placement Warrants or Repurchased Public Warrants continue to be held by Wright, the Sponsor, members of the Sponsor, Cowen, partners of Cowen or their Permitted Transferees; provided, however, that once such Placement Warrants or Repurchased Public Warrants are transferred (other than to Permitted Transferees under subsection 2.5), the Company may redeem the Placement Warrants or Repurchased Public Warrants, provided that the criteria for redemption are met, including the opportunity of the holder of such Placement Warrants or Repurchased Public Warrants to exercise the Placement Warrants or Repurchased Public Warrants prior to redemption pursuant to Section 6.3. Placement Warrants or Repurchased Public Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Placement Warrants and shall become Public Warrants under this Agreement.
| 7. | Other Provisions Relating to Rights of Holders of Warrants. |
7.1. No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Common Stock. The Company agrees that as soon as practicable, but in no event later than fifteen (15) Business Days after the closing of its initial Business Combination, it shall use its best efforts to file with the Commission a post-effective amendment to the Registration Statement, or a new registration statement, for the registration, under the Securities Act, of the Common Stock issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to register or qualify for sale, in those states in which the Warrants were initially offered by the Company, the Common Stock issuable upon exercise of the Warrants, to the extent an exemption is not available. The Company shall use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such post-effective amendment or registration statement has not been declared effective by the sixtieth (60th) Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the closing of the Business Combination and ending upon such post-effective amendment or registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act or another exemption) for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by the Fair Market Value. Solely for purposes of this Section 7.4, “Fair Market Value” shall mean the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this Section 7.4 is not required to be registered under the Securities Act and (ii) the Common Stock issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act) of the Company and, accordingly, shall not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section 7.4. In addition, the Company agrees to use its best efforts to register the Common Stock issuable upon exercise of a Warrant under the blue sky laws of the states of residence of the exercising Warrant holder to the extent an exemption is not available.
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| 8. | Concerning the Warrant Agent and Other Matters. |
8.1. Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
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8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the President, Chief Executive Officer or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any Common Stock shall, when issued, be valid and fully paid and nonassessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of the Common Stock through the exercise of the Warrants.
8.6. Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
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| 9. | Miscellaneous Provisions. |
9.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this Agreement shall be sufficiently given (i) when so delivered if by hand or overnight delivery, (ii) upon receipt of by the intended recipient if by facsimile, or (ii) if sent by certified mail or private courier service within five
(5) days after deposit of such notice, postage prepaid. Such notice, statement or demand shall be addressed as follows:
If to the Company:
Chart Acquisition Corp.
555 5th Avenue, 19th Floor,
New York, NY 10017
Fax: (212) 350-8299
Attention: Michael LaBarbera, Chief Financial Officer
If to the Warrant Agent:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Fax: 212-616-7615
Attention: Compliance Department
If to Cowen:
Cowen Investments LLC
c/o RCG LV Pearl LLC
599 Lexington Avenue, 27th Floor
New York, NY 10022
Fax: (212) 845-7990
Attention: Stephen Lasota, Chief Financial Officer
with a copy in each case (which shall not constitute service) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Fax: (212) 370-7889
Attention: Douglas S. Ellenoff
DLA Piper LLP (US)
1251 Avenue of Americas
New York, New York 10020
Fax: (212) 884-8645
Attention: Jack Kantrowitz, Esq.
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9.3. Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by 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 Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this 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. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
9.5. Examination of the Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Placement Warrants or Cowen Held Warrants, shall require the written consent of the Registered Holders of 65% of the then outstanding Public Warrants. Further, Wright, the Sponsor, the members of the Sponsor, Cowen, partners of Cowen shall not vote any Placement Warrants owned or controlled by them in favor of such amendment unless the Registered Holders of 65% of the Public Warrants vote in favor of such amendment. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders. To the extent any amendment is made to either the Placement Warrants, Cowen Held Warrants or Repurchased Public Warrants resulting in an increase in value (including for example, an extension to the Expiration Date), such amendment will also be made to all Public Warrants. In addition, there can be no such amendment to the Placement Warrants, Cowen Held Warrants or Repurchased Public Warrants after the Public Warrants have been redeemed.
9.9. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[Remainder of page intentionally left blank. Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| CHART ACQUISITION CORP. | ||
| By: | /s/ Michael LaBarbera | |
| Name: Michael LaBarbera | ||
| Title: Chief Financial Officer | ||
| CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, | ||
| as Warrant Agent | ||
| By: | /s/ Frank A. Di Paolo | |
| Name: Frank A. Di Paolo | ||
| Title: Vice President | ||
[Signature page to Second Amended and Restated Warrant Agreement]
| 15 |
EXHIBIT A
[Form of Warrant Certificate]
[FACE]
Number
___________
Warrants
_____________
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
CHART ACQUISITION CORP.
A Delaware corporation
CUSIP 161151 113
Warrant Certificate
This Warrant Certificate certifies that __________, or registered assigns, is the registered holder of __________ warrants (the “Warrants”) to purchase shares of common stock, $0.0001 par value (the “Common Stock”), of Chart Acquisition Corp. (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable shares of Common Stock (each, a “Warrant” ) as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” if permitted by the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement (as defined on the reverse hereof).
Each Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Exercise Price per share of Common Stock for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
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[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of December 13, 2012 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” if permitted by the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise
(i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the shares of Common Stock is current, except through “cashless exercise” if permitted by the Warrant Agreement. Additionally, if the Corporation fails to enter into a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Corporation and one or more businesses within 21 months from the Company’s final prospectus, the Warrants evidenced by this Warrant Certificate shall expire worthless.
The Warrant Agreement provides that upon the occurrence of certain events the number of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round up to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.
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Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive __________ shares of Common Stock and herewith tenders payment for such shares to the order of Chart Acquisition Corp. (the “Company”) in the amount of $__________ in accordance with the terms hereof. The undersigned requests that a certificate for such shares be registered in the name of __________, whose address is__________ and that such shares be delivered to __________ whose address is __________. If said number of shares is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of __________, whose address is __________, and that such Warrant Certificate be delivered to __________, whose address is __________.
In the event that the Warrant is a Placement Warrant or Repurchased Public Warrant that is to be exercised on a “cashless basis” pursuant to subsections 3.3.1(b) of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) of the Warrant Agreement.
In the event that the Warrant is to be exercised on a “cashless basis” pursuant to Section 7.4 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.
In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of, whose address is, and that such Warrant Certificate be delivered to , whose address is __________.
Date: __________, 20
| (Signature) | |
| Signature | Guaranteed: |
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).
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EXHIBIT B
LEGEND
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AGREEMENT AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THAT LOCKUP AGREEMENT PURSUANT TO THE TERMS SET FORTH THEREIN.
No. Warrants
19
Exhibit 10.3
Chart Acquisition Corp.
555 5th Avenue, 19th Floor
New York, NY 10017
[●]
March 12, 2015
| Re: | Extension of Promissory Notes |
Ladies and Gentlemen:
Reference is made to those certain promissory notes (collectively the “Notes”) dated as of February 10, 2014, September 9, 2014 and February 4, 2015, by and among Chart Acquisition Corp. (the “Maker”) and [●] (the “Payee”).
The Maker and the Payee hereby agree that the maturity dates of the Notes shall be extended to the earlier of: (i) June 13, 2015 and (ii) the date on which the Maker consummates its initial business combination.
This letter agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles.
[Signature Page Follows]
| Very truly yours, | ||
| CHART ACQUISITION CORP. | ||
| By: | ||
| Title: | ||
| Name: | ||
Acknowledged and accepted by:
| [●] | ||
| By: | ||
| Title: | ||
| Name: | ||
Exhibit 10.4
March 11, 2015
Chart Acquisition Corp.
555 5th Avenue, 19th Floor
New York, New York 10017
Deutsche Bank Securities Inc.
60 Wall Street, 4th Floor
New York, New York 10005
Cowen and Company, LLC
599 Lexington Avenue
New York, New York10022
Re: Initial Public Offering
Ladies and Gentlemen:
This second amended and restated letter agreement (“Letter Agreement”) amends and restates that certain amended and restated Letter Agreement, dated as of September 9, 2014 (the “Original Letter Agreement”) by and among Chart Acquisition Corp., a Delaware corporation (the “Company”), Deutsche Bank Securities, Inc. and Cowen and Company, LLC, as the representatives of the underwriters (the “Underwriters”) and the Insiders (as defined below). The Original Letter Agreement was delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between the Company and the Underwriters, relating to the Company’s underwritten initial public offering (the “Offering”), of 7,500,000 of the Company’s units (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 (each, a “Warrant”). The Units sold in the Offering have been listed on the Nasdaq Capital Market pursuant to a registration statement on Form S-1 and prospectus (the “Prospectus”) filed by the Company with the Securities and Exchange Commission (the “Commission”). Certain capitalized terms used herein are defined in paragraph 16 hereof.
WHEREAS, the requisite number of stockholders of the Company have approved an amendment to the Company’s amended and restated certificate of incorporation to, among other things, extend the date before which the Company must complete a business combination from March 13, 2015 (the “Original Termination Date”) to June 13, 2015 (the “Extended Termination Date”); and
WHEREAS, the parties to the Original Letter Agreement desire to amend and restate the Original Letter Agreement to provide, among other things, that any references to the Original Termination Date shall be replaced with the Extended Termination Date.
The Insiders and Underwriters hereby agree with the Company as follows:
1. Each Insider of the Company hereby agrees that if the Company seeks stockholder approval of a proposed Business Combination, then in connection with such proposed Business Combination, such person shall vote, as applicable, all Founder Shares, Placement Shares and any shares acquired by such person in the Offering or in the secondary public market in favor of such proposed Business Combination.
2. (a) Each Insider of the Company hereby agrees that in the event that the Company fails to consummate a Business Combination within 30 months from the date of the Prospectus, such person, shall take all reasonable steps to cause the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the Common Stock held by the Public Stockholders, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including any amounts representing interest earned on the Trust Account less any interest released for working capital purposes, payment of taxes or dissolution expenses, divided by the number of shares of Common Stock then outstanding, subject in each case to the Company’s obligations under Delaware law to provide for claims of creditors and other requirements of applicable law and (iii) as promptly as reasonably possible following such redemption, subject to the approval of Insiders and the Company’s board of directors, dissolve and liquidate, subject in each case to the Company’s obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law.
(b) Each of the Company and its officers and directors hereby agree they will not propose any amendment to the Company's amended and restated certificate of incorporation that would affect the substance or timing of the Company's redemption obligation, as described in Section 9.1(a) of the Company’s amended and restated certificate of incorporation.
(c) Each Insider acknowledges that such party has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Trust Account with respect to the Founder Shares or Placement Shares only.
(d) Each Insider hereby further waives, with respect to any shares of the Common Stock or Placement Shares held by such undersigned party, any redemption rights such party may have (i) in connection with the consummation of a Business Combination, (ii) if the Company fails to consummate its initial Business Combination within 30 months from the date of the Prospectus; provided, however, that if any of the Insiders, should acquire public shares in or after the Offering, such Insiders will be entitled to redemption rights with respect to such public shares if the Company fails to consummate a Business Combination within 30 months from the date of the Prospectus, (iii) in connection with an expired or unwithdrawn tender offer, and (iv) upon the liquidation of the Company prior to the expiration of the 30 month period.
3. (a) To the extent that the Underwriters do not exercise their over-allotment option to purchase an additional 1,125,000 shares of Common Stock (as described in the Prospectus), the Insiders (except Messrs. Joseph R. Wright, Governor Thomas Ridge, Senator Joseph Robert Kerrey, Timothy N. Teen and Manuel D. Medina) shall return to the Company for cancellation, at no cost, an aggregate number of Founder Shares determined by multiplying 281,250 by a fraction: (i) the numerator of which is 1,125,000 minus the number of shares of the Common Stock purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 1,125,000. The Insiders further agree that to the extent that: (A) the size of the Offering is increased or decreased and (B) the Insiders have either purchased or sold shares of the Common Stock or an adjustment to the number of Founder Shares has been effected by way of a stock split, stock dividend, reverse stock split, contribution back to capital or otherwise, in each case in connection with such increase or decrease in the size of the Offering, then, (x) the references to 1,125,000 in the numerator and denominator of the formula in the immediately preceding sentence shall be changed to a number equal to 15% of the number of shares included in the Units issued in the Offering and (y) the reference to 281,250 in the formula set forth in the immediately preceding sentence shall be adjusted to such number of shares of the Common Stock that the Insiders would have to return to the Company in order that the Insiders will hold an aggregate of 20% of the Company’s issued and outstanding shares (which 20% shall include any Founder Shares held by each of Messrs. Wright, Ridge, Kerrey, Teen and Medina) after the Offering (assuming the Underwriters do not exercise their over-allotment option and excluding any Placement Shares).
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(b) In the case of any of the Founder Shares owned by the Insiders that are not subject to forfeiture pursuant to paragraph 3(a) above, until the earlier of (A) one year after the consummation of the Business Combination or earlier if, subsequent to the Business Combination, the last sales price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Business Combination, or (B) the date on which the Company consummates a liquidation, merger, stock exchange or other similar transaction after the Business Combination that results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property (such applicable period being the “Founder Lock-Up Period”); provided that, to the extent any Founder Shares remain subject to forfeiture as described in this paragraph 3(b)(i) and (ii) below, the Founder Lock-up Period shall be automatically extended until such Founder Shares are no longer subject to forfeiture; the Insiders shall not, except as described in the Prospectus, (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 Commission promulgated thereunder (the “Exchange Act”), with respect to the Founder Shares, (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 any of the Founder Shares, whether any such transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction specified in clause (b)(i) or (b)(ii). Each of the Insiders, agrees, with respect to the Founder Shares that are the subject to this paragraph 3(b), in the event the Company’s trading price of the Common Stock does not exceed the following price targets subsequent to the Business Combination, such Insider acknowledges and agrees that it, he or she shall forfeit any and all rights to a portion of the Founder Shares, as follows:
(i) in the event the last sale price of the Common Stock does not equal or exceed $11.50 per share (as adjusted for stock splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within at least one 30-trading day period within 60 months following the closing of the Business Combination, the Insiders (and Permitted Transferees) shall forfeit pro-rata any and all rights to an aggregate of 2.5% of shares of Common Stock issued and outstanding (after exercise or expiration of the Over-allotment Option and excluding any Placement Shares); and
(ii) in the event the last sale price of the Common Stock does not equal or exceed $13.50 per share (as adjusted for stock splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within at least one 30-trading day period within 60 months following the closing of the Business Combination, the Insider (and Permitted Transferees) shall forfeit pro-rata any and all rights to 2.5% of shares of Common Stock issued and outstanding (after exercise or expiration of the Over-allotment Option and excluding any Placement Shares) in addition to any shares forfeited under Section 3(a)(i) above.
(c) Until 30 days after the consummation of the Business Combination (“Placement Unit Lock-Up Period”), each of Sponsor, Mr. Joseph R. Wright and Cowen shall not, except as described in the Prospectus, (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 Exchange Act with respect to the Placement Units, Placement Shares, Placement Warrants, Tendered Warrants or shares of Common Stock underlying the Placement Warrants or Tendered Warrants, (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 any of the Placement Units, Placement Shares, Placement Warrants, Tendered Warrants or shares of Common Stock underlying the Placement Warrants or Tendered Warrants, whether any such transaction is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction specified in clause (c)(i) or (c)(ii).
(d) Notwithstanding the provisions contained in paragraphs 3(b) and 3(c) herein, any Insider or Cowen may transfer, as applicable, the Founder Shares and/or Placement Units, Placement Shares, Placement Warrants, Tendered Warrants or shares of Common Stock underlying the Placement Warrants or Tendered Warrants: (i) to the Company’s officers or directors, to the other Insiders, any affiliates or family members of any of the Company’s officers, directors or other Insiders, any member of Sponsor or partners, affiliates or employees of members of the Sponsor, or partners of Cowen or any of their respective affiliates; (ii) by gift to a member of the Sponsor or partners, affiliates, or employees of the members of the Sponsor, or a partner of Cowen or their immediate family or one of the Insiders, an immediate family member of one of the members of the Sponsor or to a trust, the beneficiary of which is a member of Sponsor or a family member of a member of the Sponsor or partners, affiliates or employees of the members of the Sponsor, or partner of Cowen and their immediate family, or an Insider, or to a charitable organization; (iii) by virtue of the laws of descent and distribution upon death of an Insider (including members of Sponsor) or a partner of Cowen; (iv) pursuant to a qualified domestic relations order; (v) by virtue of the laws of the state of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor or, in the case of Cowen, by virtue of the laws of the Cayman Islands or its controlling limited partnership agreement; (vi) in the event of the Company’s liquidation prior to the completion of the Business Combination; or (vii) in the event that the Company consummates a liquidation, merger, stock exchange or other similar transaction that results in all of its stockholders having the right to exchange their shares of the Common Stock for cash, securities or other property subsequent to the consummation of the Business Combination; provided, however, that, in the case of clauses (i) through (v), these permitted transferees (each, a “Permitted Transferee”) enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in paragraphs 3(b) and 3(c) herein; provided, further that any Placement Units, Placement Shares or Placement Warrants held by Cowen or any of its “related persons” under the rules of the Financial Industry Regulatory Authority shall not be sold during the Offering or sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of any such Placement Units, Placement Shares or Placement Warrants by any person for a period of 180 days immediately following the date of effectiveness of the registration statement of which the Prospectus forms a part.
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(e) Further, each Insider agrees that after the Founder Lock-Up Period or the Placement Unit Lock-Up Period, as applicable, has elapsed, the Founder Shares and/or Placement Units, Placement Shares, Placement Warrants or shares of Common Stock underlying the Placement Warrants owned by such Insider shall only be transferable or saleable pursuant to a sale registered under the Securities Act or pursuant to an available exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”). The Company and each Insider acknowledges that pursuant to that certain registration rights agreement to be entered into among the Company and certain securityholders of the Company, parties to the agreement may request that a registration statement relating to the Founder Shares and/or Placement Units, Placement Shares, Placement Warrants or shares of Common Stock underlying the Placement Warrants be filed by the Company with the Commission prior to the end of the Founder Lock-Up Period or the Placement Unit Lock-Up Period, as the case may be; provided, however, that such registration statement does not become effective prior to the end of the Founder Lock-Up Period or the Placement Unit Lock-Up Period, as applicable.
(f) Subject to the limitations described herein, each Insider shall retain all of such Insider’s rights as a securityholder during, as applicable, the Founder Lock-up Period and/or Placement Unit Lock-Up Period including, without limitation, the right to vote, as the case may be, the Founder Shares and/or Placement Shares.
(g) During the Founder Lock-Up Period and Placement Unit Lock-Up Period, all dividends payable in cash with respect to such securities shall be paid, as applicable, to each security holder, but all dividends payable in Common Stock or other non-cash property shall become subject to the applicable lock-up period as described herein and shall only be released from such lock-up in accordance with the provisions of this paragraph 3.
(h) Cowen agrees to purchase up to 1,312,500 Warrants, Joseph R. Wright agrees to purchase up to 125,000 Warrants, and the Sponsor (together with Cowen and Joseph R. Wright, the “Warrant Purchasers”) agrees to purchase up to 2,312,500 Warrants, in each case, at a purchase price of $0.60 per Warrant in a tender offer which will occur after the announcement by the Company of its having entered into a binding agreement with respect to its initial Business Combination (the “Warrant Tender Offer”); provided, however, that the aggregate number of Warrants subject to the Warrant Tender Offer shall be reduced at a ratio of one for every two Warrants tendered pursuant to the Warrant Extension Tender Offer (as defined below) and the tender offer consummated by the Warrant Purchasers on September 12, 2014 (the “Initial Warrant Tender Offer”) (rounded to the nearest number). In the event of any such reduction, the amount of Warrants each Warrant Purchaser agrees to purchase shall be reduced pro rata. Each of the Warrant Purchasers further agrees not to tender any of its Placement Warrants or any public warrants it may hold in the Warrant Tender Offer, which shall be consummated only upon, and simultaneously with, a Business Combination. The Warrant Purchasers also agree to deposit with Continental Stock Transfer & Trust Company (“Escrow Account”) an aggregate of $2,250,000 (representing $0.60 per Warrant for up to 3,750,000 of the Warrants), of which $2,247,690 remains following the consummation of the Initial Warrant Tender Offer. Each of the Warrant Purchasers further agrees that in the event the Company is unable to consummate the initial Business Combination, Continental Stock Transfer & Trust Company shall distribute to the holders of the Warrants the entire Escrow Account (as reduced by the amounts distributed in connection with the Warrant Extension Tender Offer), as promptly as reasonably possible, but no more than five business days after 30 months from the date of the Prospectus.
(i) Cowen agrees to purchase up to 2,622,305 Warrants, Joseph R. Wright agrees to purchase up to 249,746 Warrants, and the Sponsor agrees to purchase up to 4,620,249 Warrants, in each case, at a purchase price of $0.30 per Warrant in a tender offer which will close on or about the Original Termination Date (the “Warrant Extension Tender Offer”). Each of the Warrant Purchasers further agrees not to tender any of its Placement Warrants or any public warrants it may hold in the Warrant Extension Tender Offer.
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4. Without limiting the provisions of paragraph 3 hereof, during the period commencing on the effective date of the Underwriting Agreement and ending 180 days after such date, each of 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 Exchange Act with respect to any Units, Placement Units, shares of Common Stock, Warrants, Placement Shares, Placement Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by an undersigned party, (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 any Units, Placement Units, shares of Common Stock, Warrants, Placement Shares, Placement Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by the undersigned, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii).
5. In the event of the liquidation of the Trust Account without the consummation of a Business Combination, each of Joseph R. Wright and Christopher D. Brady (the “Indemnitors”) agree to jointly and severally indemnify and hold harmless the Company against any and all loss, liability, claim, 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) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company or (ii) a prospective target business with which the Company has discussed entering into a transaction agreement for a Business Combination (a “Target”) as described in the Prospectus; provided, however, that such indemnification of the Company by the Indemnitors shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to the Company or a Target do not reduce the amount of funds in the Trust Account to below $10.00 (or approximately $9.96 if the over-allotment is exercised in full) per share of the Common Stock sold in the Offering (the “Offering Shares”), and, provided, further, that only if such third party or Target has not executed an agreement waiving claims against and all rights to seek access to the Trust Account whether or not such agreement is enforceable. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Indemnitors shall not be responsible for any liability as a result of any such third party claims. Notwithstanding any of the foregoing, such indemnification of the Company by the Indemnitors shall not apply as to any claims under the Company’s obligation to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act. The Indemnitors shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitors, the Indemnitors notify the Company in writing that the Indemnitors shall undertake such defense.
6. Each of the undersigned and the Company agrees that the Company will not engage any third party to render services, agree to purchase any products from such third party, or enter into any discussion or any acquisition agreement with a Target unless (i) such third party or Target has agreed to execute a waiver against any right, title, interest or claim of any kind in or to any monies held in the Trust Account or any proceeds from the Trust Account that is acceptable to the Board of Directors of the Company (the “Board”) or (ii) the Board has consented in writing to dispense with such waiver with respect to such services, product, discussions or acquisition agreement, in each case with the written consent of each of the Indemnitors as part of the consent of the Board.
7. In order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, each officer and director hereby agrees that until the earliest of the Company’s initial Business Combination, liquidation or such time as such party ceases to be an officer or director of the Company, such person shall present to the Company for its consideration, prior to presentation to any other entity, any suitable Business Combination opportunities of which such person or companies or entities which such person manages or controls becomes aware, subject to any pre-existing fiduciary or contractual obligations such party might have as disclosed to the Company.
8. As applicable, the biographical information furnished to the Company by an officer or director of the Company is true and accurate in all material respects and does not omit any material information with respect to such person’s background. Each of the questionnaires furnished to the Company by an officer and director is true and accurate in all material respects.
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9. Each undersigned party represents and warrants that:
(a) such party 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) such party has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and the undersigned is not currently a defendant in any such criminal proceeding; and
(c) such party 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.
10. No Insider shall receive any finder’s fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Business Combination (regardless of the type of transaction that it is), other than the following:
(a) repayment of $175,000 in loans made to the Company by the Sponsor in connection with the preparation, filing and consummation of the Offering;
(b) payment of an aggregate of $10,000 per month to the Sponsor or an affiliate of the Sponsor, for office space, general office support, and receptionist, secretarial and administrative services;
(c) reimbursement for any out-of-pocket expenses related to identifying, investigating and consummating an initial Business Combination, provided that no proceeds held in the Trust Account may be applied to the payment of such expenses prior to the consummation of a Business Combination;
(d) repayment of loans, if any, and on such terms as to be determined by the Company from time to time after completion of this Offering, made by the Sponsor or an affiliate of the Sponsor or any Insider to finance working capital requirements of the Company; provided, that, if the Company does not consummate a Business Combination, a portion of the working capital held outside the Trust Account may be used by the Company to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment; and
(e) Promptly following the consummation of the Company’s initial Business Combination, the Company shall reimburse the Warrant Purchasers for the fees and expenses incurred in connection with the Warrant Tender Offer and the Warrant Extension Tender Offer.
11. Each undersigned party acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations, and warranties set forth herein in proceeding with the Offering.
12. To the extent applicable, each undersigned party authorizes any employer, financial institution, or consumer credit reporting agency to release to the Underwriters and their legal representatives or agents (including any investigative search firm retained by the Underwriters) any information they may have about such undersigned party’s background and finances (“Information”), purely for the purposes of the Offering (and shall thereafter hold such information confidential). Neither the Underwriters nor its agents shall be violating such undersigned party’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.
13. Each officer and director of the Company acknowledges and agrees that the Company will not consummate any Business Combination with any company with which an officer or director has had any discussions in such person’s capacity as an officer or director of the Company, formal or otherwise, prior to the consummation of the Offering, with respect to a Business Combination. Until the earlier of (i) the entry into a definitive agreement by the Company for a Business Combination; (ii) the liquidation of the Company; or (iii) the termination of such person as an officer or director of the Company, each officer and director of the Company agrees not to become affiliated as an officer or director of a blank check company similar to the Company.
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14. Each undersigned party acknowledges and agrees that the Company will not consummate any Business Combination that involves a company which is affiliated with such undersigned party unless the Company obtains an opinion from an independent investment banking firm which is a member of FINRA that the Business Combination is fair to the Company’s stockholders from a financial perspective.
15. Each officer and director has full right and power, without violating any agreement to which such person is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement and to serve as an officer of the Company or as a director on the board of directors of the Company, as applicable, and hereby consents to being named in the Prospectus as an officer and/or as a director of the Company, as applicable.
16. As used in this Letter Agreement, (i) “Business Combination” shall mean a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar Business Combination, involving the Company and one or more businesses; (ii) “Founder Shares” shall mean the 2,156,250 shares of the Common Stock of the Company acquired by Sponsor for an aggregate purchase price of $25,000, or approximately $0.0116 per share, prior to the consummation of the Offering; (iii) “Public Stockholders” shall mean the holders of securities issued in the Offering; (iv) “Placement Shares” shall mean the shares of Common Stock sold as part of the Placement Units; (v) “Placement Warrants” shall mean the aggregate of 375,000 Warrants to purchase up to an aggregate of 375,000 shares of the Common Stock that are acquired as part of the Placement Units; (vi) “Placement Units” shall mean the aggregate of 375,000 Units of the Company (each Placement Unit consists of one Placement Warrant and one Placement Share) sold in a private placement simultaneous with the Offering for an aggregate purchase price of $3,750,000 to Sponsor, Joseph R. Wright and Cowen; (vii) “Trust Account” shall mean the trust account into which a portion of the net proceeds of the Offering and the Private Placement will be deposited; (viii) “Prospectus” shall mean the prospectus included in the registration statement filed by the Company in connection with the Offering, as supplemented or amended from time to time; (ix) “Private Placement” shall mean that certain private placement transactions occurring simultaneously with the closing of the Offering pursuant to which the Company has agreed to sell (A) 231,250 Placement Units to Chart Acquisition Group LLC, a Delaware limited liability company (the “Sponsor”), (B) 12,500 Placement Units to Joseph R. Wright and (C) 131,250 Placement Units to Cowen Overseas Investment LP, a Cayman Islands limited partnership (“Cowen”); and (x) “Tendered Warrants” shall mean the Public Warrants to be purchased by the Warrant Purchasers in connection with the Warrant Tender Offer and the Warrant Extension Tender Offer; and (xi) “Insiders” shall mean the Sponsor, any holder of the Placement Units, or its underlying securities or Founder Shares, any of their respective Permitted Transferees and each officer and director of the Company.
17. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the parties hereto.
18. No party may assign either this Letter Agreement or any of party’s rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on each undersigned party and each of such undersigned party’s, as applicable, heirs, personal representatives, successors and assigns.
19. 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 Insider and Cowen (i) agrees that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York, in the State of New York, and irrevocably submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waives any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
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20. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, electronic or facsimile transmission.
21. This Letter Agreement shall terminate on the earlier of (i) the later of the expiration of the Founder Lock-Up Period or Placement Unit Lock-Up Period, as applicable, or (ii) the liquidation of the Trust Account; provided, however, that this Letter Agreement shall earlier terminate in the event that the Offering is not consummated; and, provided, further, that paragraph 5 of this Letter Agreement shall survive any liquidation of the Company.
[Signature page follows]
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| Sincerely, | ||
|
COMPANY: CHART ACQUISITION CORP. a Delaware corporation | ||
| By: | ||
|
CHART ACQUISITION GROUP LLC a Delaware limited liability company | ||
| By: |
THE CHART GROUP L.P., a Delaware limited partnership, as the managing member of Chart Acquisition Group LLC | |
| By: | ||
| Name: | Christopher D. Brady | |
| Title: | Manager |
|
COWEN INVESTMENTS LLC, a Cayman Islands limited partnership | ||
| By: | RCG LV PEARL, LLC, its general partner | |
| By: | ||
| Name: | ||
| Title: |
|
THE CHART GROUP L.P., a Delaware limited partnership
| ||
| By: | ||
| Christopher D. Brady | ||
| Manager | ||
|
THE KENDALL FAMILY INVESTMENTS | ||
| By: | ||
Signature Page to Second Amended and Restated Letter Agreement
| 9 |
| Joseph R. Wright | Governor Thomas Ridge | |
| Senator Joseph Robert Kerrey | Timothy N. Teen | |
| David Collier | Christopher Brady | |
| Michael LaBarbera | Charlene Ryan | |
| Matthew McCooe | Christopher Brady Jr. | |
| Cole Van Nice | ||
| Young-Gak Yun | Geoffry Nattans | |
| H. Whitney Wagner | Abdulwahab Al-Nakib | |
| Joseph Boyle |
Khaled El-Marsafy (Fourth and Market) | |
| Deirdre Kilmartin | Margaret Saracco | |
| Manuel D. Medina |
Signature Page to Second Amended and Restated Letter Agreement
10
Exhibit 10.5
SECOND AMENDED AND RESTATED ESCROW AGREEMENT
SECOND AMENDED AND RESTATED ESCROW AGREEMENT, dated as of March 11, 2015 (“Agreement”), by and among Chart Acquisition Group, LLC (the “Representative”), Joseph Wright (“Wright”), and Cowen Investments LLLC (“Cowen Investments,” together with Wright and the Representative, the “Warrant Purchasers”), Continental Stock Transfer & Trust Company, a New York corporation (“Escrow Agent”) and Deutsche Bank Securities, Inc. (“DB”) and Cowen and Company, LLC (“Cowen”), with DB and Cowen acting as representatives of the several Underwriters (as defined below).
WHEREAS, the Warrant Purchasers agreed to establish an escrow account (the “Escrow Account”) to deposit certain funds with the Escrow Agent for the benefit of the holders of warrants (the “Beneficiaries”) issued by Chart Acquisition Corporation (the “Company”) in its initial public offering (the “IPO”) being underwritten by the underwriters in connection thereof, including DB and Cowen (the “Underwriters”), in an amount of TWO MILLION TWO HUNDRED FIFTY THOUSAND and 00/100 ($2,250,000.00) U.S. Dollars (the “Escrow Asset”), which amount shall be distributed, from time to time in accordance with the procedures set forth below;
WHEREAS, the Warrant Purchasers have collectively committed to offer to purchase up to 3,750,000 (subject to reduction as described herein) of the Company’s issued and outstanding warrants offered in the IPO (the “Warrants”) at a purchase price of $0.60 per Warrant in a proposed tender offer in connection with a business combination as described in the Registration Statement. The Beneficiaries that have tendered Warrants purchased by the Warrant Purchasers in such tender offer are hereinafter referred to as the “Tendering Beneficiaries.”);
WHEREAS, the parties hereto entered into the Escrow Agreement on December 19, 2012 (the “Original Agreement”) in connection with the IPO, as described in the Company’s Registration Statement on Form S-1, File No. 333-177280 (“Registration Statement”), to govern the distribution of the Escrow Asset;
WHEREAS, the requisite number of stockholders of the Company have approved an amendment (the “Extension Amendment”) to the Company’s second amended and restated certificate of incorporation to, among other things, extend the date before which the Company must complete a business combination from March 13, 2015 (the “Original Termination Date”) to June 13, 2015 (the “Extended Termination Date”);
WHEREAS, on September 12, 2014, the Warrant Purchasers purchased an aggregate of 7,700 of the Warrants at a purchase price of $0.30 per Warrant in a tender offer (the “Initial Warrant Extension Tender Offer”);
WHEREAS, following the Initial Warrant Extension Tender Offer TWO MILLION TWO HUNDRED FORTY SEVEN THOUSAND SIX HUNDRED NINETY and 00/100 ($2,247,690) U.S. Dollars remain in the Escrow Account;
WHEREAS, the parties hereto entered into the Amended and Restated Escrow Agreement on September 12, 2014 (the “Current Agreement”) to amend and to restate the Original Agreement in its entirety;
WHEREAS, the Warrant Purchasers have collectively committed to offer to purchase up to 7,492,300 of the Company’s Warrants at a purchase price of $0.30 per Warrant in a proposed tender offer to close on or about the Original Termination Date (the “Second Warrant Extension Tender Offer”) in connection with the Extension Amendment. The Beneficiaries that have tendered Warrants purchased by the Warrant Purchasers in such Second Warrant Extension Tender Offer are hereinafter referred to as the “Extension Tendering Beneficiaries”; and
WHEREAS, the parties hereto desire to amend and restate the Current Agreement to, among other things, provide that the Company’s failure to complete a business combination by the Extended Termination Date (rather than the Original Termination Date) will, in the circumstances set forth herein, constitute a Termination Event hereunder and to permit the Warrant Purchasers to use the Escrow Asset to fund the Second Warrant Extension Tender Offer.
IT IS AGREED:
1. Appointment of Escrow Agent and Representative.
1.1. The Warrant Purchasers hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
1.2. The Warrant Purchasers hereby appoint the Representative as their representative to act on behalf of the Warrant Purchasers as their duly authorized agent with respect to all matters governed by this Agreement and the Representative hereby accepts such appointment and agrees to act in accordance with and subject to the terms hereof.
2. Deposit of Escrow Asset. 24 hours prior to the effective date of the Registration Statement (the “Effective Date”), the Warrant Purchasers shall deliver to the Escrow Agent the Escrow Asset in the amounts set forth in Schedule 1 hereto. The funds shall be delivered by wire transfer to a segregated non-interest bearing bank account established by the Escrow Agent at JP Morgan Chase Bank, NA maintained by the Escrow Agent, which thereafter shall be disbursed only in accordance with the terms and conditions of this Agreement and at a brokerage institution selected by the trustee that is reasonably satisfactory to the Company;
The Escrow Asset will be invested by the Escrow Agent only when and as directed in writing by Representative in a form substantially similar to Exhibit D attached hereto. in United States treasuries with a maturity of 180 days or less or in money market funds that invest solely in United States treasury securities.
3. Disbursement and Reduction of the Escrow Asset.
3.1. The Escrow Agent shall hold the Escrow Asset during the period (the “Escrow Period” commencing on the date hereof and ending upon the earlier of (each a “Termination Event”) (i) the Company’s consummation of an initial business combination as described in the Registration Statement (“Business Combination”) or (ii) the Company’s failure to consummate a Business Combination within 30 months from the date of the final prospectus. Upon completion of the Escrow Period, the Escrow Agent shall promptly commence the distribution of the Escrow Asset (excluding any interest or dividends earned thereon) to the Beneficiaries upon receipt of, and only in accordance with, the terms of a joint letter (the “Direction Letter”) in accordance with Sections 3.3 or 3.4, as applicable, hereof. Notwithstanding the foregoing, during the Escrow Period, the Escrow Agent may distribute a certain portion of the Escrow Asset pursuant to Sections 3.2 or 3.5 herein.
3.2. During the Escrow Period, upon written request from the Representative, which may be given from time to time pursuant to a letter (the “Earnings Reduction Letter”) in a form substantially similar to that attached hereto as Exhibit A, the Escrow Agent shall reduce the amount of the Escrow Asset and distribute to the Warrant Purchasers by wire transfer the income collected on the Escrow Asset.
3.3. If the Termination Event is the Company’s consummation of a Business Combination, Escrow Agent shall distribute the Escrow Asset pro-rata to the Tendering Beneficiaries upon Escrow Agent’s receipt of a Direction Letter in a form substantially similar to that attached hereto as Exhibit B, stating that that the Company has consummated its initial business combination, as set forth in the Registration Statement and a concurrent tender offer has also been consummated for up to 3,750,000 (provided, that such number shall be reduced at a ratio of one for every two Warrants (rounded to the nearest number) properly tendered and not withdrawn in the Initial Warrant Extension Tender Offer or the Second Warrant Extension Tender Offer) of the Company’s Warrants issued (but not private warrants), such that each Tendering Beneficiary will receive an amount equal to $0.60 per Warrant for each Warrant validly tendered and not properly withdrawn on a pro rata basis as applicable. The Escrow Agent will distribute all validly tendered and acquired Warrants to the Warrant Purchasers on a pro rata basis.
3.4. If the Termination Event is the Company’s failure to consummate a Business Combination, Escrow Agent shall distribute the Escrow Asset pro-rata to the Beneficiaries upon Escrow Agent’s receipt of a Direction Letter in a form substantially similar to that attached hereto as Exhibit C-1, stating that the Company did not consummate a proposed business combination within 30 months from the date of the final prospectus, and the Warrant Purchasers must distribute the Escrow Asset such that each Beneficiary receives a pro rata amount of the Escrow Asset per Warrant for each Warrant then held by such Beneficiary.
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3.5. If the Company has not consummated a Business Combination within 27 months from the date of the final prospectus, the Escrow Agent shall distribute a portion of the Escrow Asset to the Extension Tendering Beneficiaries upon Escrow Agent’s receipt of a Direction Letter in a form substantially similar to that attached hereto as Exhibit C-2, stating that the Second Warrant Extension Tender Offer has been consummated and authorizing distribution of a portion of the Escrow Asset to the Extension Tendering Beneficiaries based on the number of Warrants tendered by each Extension Tendering Beneficiary and not properly withdrawn, such that each Extension Tendering Beneficiary is entitled to receive an amount equal to $0.30 per Warrant for each Warrant validly tendered and not properly withdrawn. The Escrow Agent will distribute all validly tendered and acquired Warrants to the Warrant Purchasers on a pro rata basis.
4. Concerning the Escrow Agent.
4.1. Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
4.2. Indemnification. The parties hereto agree to jointly and severally indemnify and hold the Escrow Agent harmless from and against any expenses, including counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Asset held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Asset or it may deposit the Escrow Asset with the clerk of any appropriate court or it may retain the Escrow Asset pending receipt of a final, non appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Asset are to be disbursed and delivered. The provisions of this Section 4.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 4.5 or 4.6 below.
4.3. Compensation. The Escrow Agent shall be entitled to compensation in accordance with Schedule A attached hereto from the Warrant Purchasers for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from the Warrant Purchasers for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges. The parties further agree to promptly pay the Escrow Agent’s monthly invoices when delivered by regular mail, or by other electronic means to the following address: Chart Acquisition Group LLC, 555 Fifth Avenue, 19th Floor, New York, New York 10017, Attn: Christopher D. Brady.
4.4. Further Assurances. From time to time on and after the date hereof, the Warrant Purchasers shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
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4.5. Resignation. The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed jointly by DB and Cowen, the Escrow Asset held hereunder. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Asset with any court it reasonably deems appropriate.
4.6. Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 4.5.
4.7. Liability. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
5. Miscellaneous.
5.1. Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed 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.
5.2. Third Party Beneficiaries. Each of the Warrant Purchasers hereby acknowledges that the Beneficiaries and Extending Tender Beneficiaries are third party beneficiaries of this Agreement.
5.3. Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
5.4. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
5.5. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
5.6. Notices. Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid, and shall be deemed given when so delivered personally or, if mailed, two days after the date of mailing, as follows:
If to the Warrant Purchasers, to the Representative:
Chart Acquisition Group LLC
555 Fifth Avenue, 19th Floor
New York, New York 10017
Attn: Christopher D. Brady
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and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven G. Nelson, Chairman
And if to DB, to:
Deutsche Bank Securities Inc.
60 Wall Street, 4th Floor
New York, New York 10005
And if to Cowen, to:
Cowen and Company, LLC
599 Lexington Avenue
New York, NY 10022
Attn: Head of Equity Capital Markets
A copy of any notice sent hereunder shall be sent to:
DLA Piper LLP (US)
1251 Avenue of the Americas, 27th Floor
New York, New York 10020-1104
Attn: Jack Kantrowitz, Esq.
and:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
Attention: Douglas S. Ellenoff
The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.
[Signature Page Follows]
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WITNESS the execution of this Agreement as of the date first above written.
| WARRANT PURCHASERS: | ||
| CHART ACQUISITION GROUP, LLC | ||
| (as a Warrant Purchaser and its capacity as Representative) | ||
| By: | /s/ Michael LaBarbera | |
| Name: Michael LaBarbera | ||
| Title: Manager | ||
| /s/ Joseph Wright | ||
| Name: Joseph Wright | ||
| COWEN INVESTMENTS LLC | ||
| By: | /s/ Owen Littman | |
| Name: Owen Littman | ||
| Title: Authorized Signatory | ||
| ESCROW AGENT: | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| By: | /s/ Frank A. Di Paolo | |
| Name: Frank A. Di Paolo | ||
| Title: Vice President | ||
| DEUTSCHE BANK SECURITIES INC. | ||
| By: | /s/ Mahesh Srinivasan | |
| Name: Mahesh Srinivasan | ||
| Title: | ||
| COWEN AND COMPANY, LLC | ||
| By: | /s/ Andrew Metz | |
| Name: Andrew Mertz | ||
| Title: Managing Director | ||
[Signature Page to Second Amended and Restated Escrow Agreement]
| 6 |
SCHEDULE A
| 7 |
SCHEDULE 1
| WARRANT PURCHASER | PERCENTAGE | AMOUNT | ||||||
| Chart Acquisition Group LLC | 61.7 | % | $ | [_____] | ||||
| Joseph R. Wright | 3.3 | % | $ | [_____] | ||||
| Cowen Investments LLC | 35.0 | % | $ | [_____] | ||||
| 8 |
EXHIBIT A
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place, 8th Floor
New York, New York 10004
Attn: Steven Nelson and Frank DiPaolo
Re: Escrow Account No. [ ] - Earnings Reduction Letter
Gentlemen:
Pursuant to Section 3.2 of the Second Amended and Restated Escrow Agreement by and among Chart Acquisition Group, LLC (the “Representative”), Joseph Wright, and Cowen Investments LLC (“Cowen Investments,” and together with Joseph Wright and the Representative, the “Warrant Purchasers”), Continental Stock Transfer & Trust Company, a New York corporation (“Escrow Agent”) and Deutsche Bank Securities, Inc. and Cowen and Company, LLC, dated as of , 2015 (the “Escrow Agreement”), the Representative hereby requests that you deliver to it $ of the interest income earned on the Escrow Asset as of the date hereof as follows.
[LIST WARRANT PURCHASERS AND AMOUNTS]
In accordance with the terms of the Escrow Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Warrant Purchasers’ operating accounts at:
[WIRE INSTRUCTION INFORMATION]
| Chart Acquisition Group, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
cc Deutsche Bank Securities, Inc.
Cowen and Company, LLC
| 9 |
EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Escrow Account No. [ ] - Direction Letter
Gentlemen:
Pursuant to Section 3.3 of the Second Amended and Restated Escrow Agreement between Chart Acquisition Group, LLC (the “Representative”), Joseph Wright, and Cowen Investments LLC (“Cowen Investments,” and together with Joseph Wright and the Representative, the “Warrant Purchasers”), Continental Stock Transfer & Trust Company, a New York corporation (“Escrow Agent”) and Deutsche Bank Securities, Inc. and Cowen and Company, LLC, dated as of , 2015 (the “Escrow Agreement”), this is to advise you that the Company has consummated a business combination with [ ] (the “Target Businesses”) on [ ] (the “Consummation Date”). Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement.
Pursuant to Section 3.3 of the Escrow Agreement, you are hereby directed to distribute the Escrow Asset (less any interest earned thereon) pro-rata to the Tendering Beneficiaries based on the number of Warrants tendered by each Tendering Beneficiary and not properly withdrawn because the Company has consummated its initial business combination, as set forth in the Registration Statement and a concurrent tender offer has also been consummated for up to 3,746,150 (provided, that such number shall be reduced at a ratio of one for every two Warrants (rounded to the nearest number) properly tendered and not withdrawn in the Second Warrant Extension Tender Offer) of the Company’s Warrants (but not private warrants) issued, such that each Tendering Beneficiary is entitled to receive an amount equal to $0.60 per Warrant for each Warrant validly tendered and not properly withdrawn (pro rated as applicable). The balance of the Escrow Asset, if any, should be returned to the Warrant Purchasers’ operating accounts at:
[WIRE INSTRUCTION INFORMATION]
Upon the distribution of all Escrow Asset pursuant to the terms hereof, the Escrow Agreement shall be terminated.
| Very truly yours, | ||
| Chart Acquisition Group, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| Deutsche Bank Securities, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Cowen and Company, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| 10 |
EXHIBIT C-1
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Escrow Account No. [ ] - Direction Letter
Gentlemen:
Reference is made to the Second Amended and Restated Escrow Agreement between Chart Acquisition Group, LLC (the “Representative”), Joseph Wright, and Cowen Investments LLC (“Cowen Investments,” and together with Joseph Wright and the Representative, the “Warrant Purchasers”), Continental Stock Transfer & Trust Company, a New York corporation (“Escrow Agent”) and Deutsche Bank Securities, Inc. and Cowen and Company, LLC, dated as of , 2015 (the “Escrow Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement. Pursuant to Section 3.4 of the Escrow Agreement, this is to advise you that the Company did not consummate a proposed business combination within 30 months from the initial closing of effective date of the Registration Statement, and the Warrant Purchasers must distribute the Escrow Asset such that each Beneficiary receives a pro rated amount of the Escrow Asset per Warrant for each Warrant then held by such Beneficiary.
In accordance with the terms of the Escrow Agreement, you are hereby directed to distribute the Escrow Asset on [ ] to the warrantholders. [ ] has been selected as the “record” date for the purpose of determining the warrantholders entitled to receive their pro rata share of the Escrow Asset (less interest earned thereon). You agree to be the paying agent of record and in your separate capacity as paying agent to distribute said funds directly to the Company’s warrantholders (other than with respect to the private warrants) in accordance with the terms of the Escrow Agreement. Upon the distribution of all of the funds comprising the Escrow Asset, your obligations under the Escrow Agreement shall be terminated.
| Very truly yours, | ||
| Chart Acquisition Group, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
cc: Deutsche Bank Securities, Inc.
Cowen and Company, LLC
| 11 |
EXHIBIT C-2
[Letterhead of Company]
[Insert date]
Continental Stock Transfer
& Trust Company
17 Battery Place
New York, New York 10004
Attn: Steven Nelson and Frank Di Paolo
Re: Escrow Account No. [ ] - Direction Letter
Gentlemen:
Reference is made to the Second Amended and Restated Escrow Agreement between Chart Acquisition Group, LLC (the “Representative”), Joseph Wright, and Cowen Investments LLC (“Cowen Investments,” and together with Joseph Wright and the Representative, the “Warrant Purchasers”), Continental Stock Transfer & Trust Company, a New York corporation (“Escrow Agent”) and Deutsche Bank Securities, Inc. and Cowen and Company, LLC, dated as of , 2015 (the “Escrow Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Escrow Agreement. Pursuant to Section 3.5 of the Escrow Agreement, this is to advise you that the Second Warrant Extension Tender Offer has been consummated. In accordance with the terms of the Escrow Agreement, you are hereby directed to distribute [ ] of the Escrow Asset to the Extension Tendering Beneficiaries based on the number of Warrants tendered by each Extension Tendering Beneficiary and not properly withdrawn and, such that each Extension Tendering Beneficiary is entitled to receive an amount equal to $0.30 per Warrant for each Warrant validly tendered and not properly withdrawn. You agree to be the paying agent of record and in your separate capacity as paying agent to distribute said funds directly to the Company’s warrantholders who are Extension Tendering Beneficiaries in accordance with the terms of the Escrow Agreement. If this distribution consists of all of the funds comprising the Escrow Asset, your obligations under the Escrow Agreement shall be terminated.
| Very truly yours, | ||
| Chart Acquisition Group, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
cc: Deutsche Bank Securities, Inc.
Cowen and Company, LLC
| 12 |
Exhibit D
October 11, 2012
Continental Stock Transfer & Trust Company
17 Battery Place, 8th Floor
New York, New York 10017
Attention: Frank A. Di Paolo, Chief Financial Officer
Dear Frank,
Regarding account _____________ established with Morgan Stanley in the name of Continental Stock and Transfer A/A/F Chart Acquisition Group, LLC, please issue instructions to invest the escrow deposit as follows:
Investment parameters:
[$______ of the Escrow Asset will be invested only in United States treasuries with a maturity of 180 days or less and the remaining $______ may be invested in either United States treasuries with a maturity of 180 days or less or in money market funds that invest solely in United States treasuries.]
SELECT OPTION
☐ Option 1:
Please purchase at market a $______ US T-bill maturing in 180 days and, with the remaining funds $______ , purchase an additional US T-bill also maturing in 180 days.
Or
☐ Option 2:
Please purchase at market a $______ T-bill maturing in 180 days and, with the remaining funds ($______), purchase Morgan Stanley 100% US Treasury Securities Money Market Fund.
Or
☐ Option 3:
Please purchase $______, of Morgan Stanley 100% US Treasury Securities Money Market Fund.
| Sincerely, | ||
| Chart Acquisition Group, LLC | ||
| By: | ||
13