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): September 5, 2014
CHART ACQUISITION
CORP.
(Exact name
of registrant as specified in its charter)
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| Delaware |
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001-35762 |
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45-28532218 |
(State or other Jurisdiction
of Incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
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c/o The Chart Group, L.P.
555 Fifth Avenue, 19th Floor
New York, New York |
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10017 |
| (Address of Principal Executive Offices) |
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(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:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o 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.
As a result of
the meeting of stockholders described in Item 5.07 below, on September 5, 2014, Chart Acquisition Corp. (the “Company”)
entered into the Trust Agreement (as defined below) with Continental (as defined below), a copy of which is attached as Exhibit
10.1 hereto and is incorporated by reference herein.
Item 3.01
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously
reported in a Current Report on Form 8-K filed with the Securities and Exchange Commission (“Commission”) on March
7, 2014, the Company received a written notice on March 4, 2014, from the staff of the Listing Qualifications Department of the
NASDAQ Stock Market (the “Staff”) indicating that the Company was not in compliance with Listing Rule 5550(a)(3) (the
“Minimum Public Holders Rule”), which requires the Company to maintain a minimum of 300 public holders for continued
listing on the NASDAQ Capital Market (“Nasdaq”). Subsequently, the Staff accepted the Company’s plan to regain
compliance with the Minimum Public Holders Rule and provided the Company until September 2, 2014 to evidence such compliance. On
September 5, 2014, the Company received a letter from the Staff stating that the Company had failed to evidence compliance with
the Minimum Public Holders Rule by September 2, 2014, and that, accordingly, the Staff has determined to initiate procedures to
delist the Company’s securities from Nasdaq, unless the Company appeals such determination on or before September 12, 2014.
The Company intends to appeal the Staff’s delisting determination in front of a hearings panel and the Company’s securities
will continue to trade on Nasdaq while such appeal is pending. There is no assurance that the Company will be successful in its
appeal of the delisting determination.
Item 5.03. Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal Year.
As a result of the
meeting of stockholders described in Item 5.07 below, on September 5, 2014, 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
September 5, 2014, 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 September 13, 2014 to March 13, 2015 (the “Business Combination Deadline 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 Stock
Transfer & Trust Company (“Continental”), the trustee of the Trust Account, to disburse such
redemption payments (the “Redemption Rights Amendment”) and (iii) an amendment and restatement of the
Investment Management Trust Agreement (as amended and restated, 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 Meeting, and extending the date on which to liquidate the
Trust Account in accordance with the Trust Agreement to March 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 964,691.
Set forth below are the final voting
results for each of the proposals:
Business Combination Deadline Amendment
The Extension Amendment
was approved. The voting results were as follows:
| Votes For |
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Votes Against |
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Abstentions |
| 8,750,090 |
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148,099 |
|
100,000 |
Redemption Rights Amendment
The Redemption Rights
Amendment was approved. The voting results were as follows:
| Votes For |
|
Votes Against |
|
Abstentions |
| 8,896,487 |
|
1,702 |
|
100,000 |
Trust Amendment
The Trust Amendment
was approved. The voting results were as follows:
| Votes For |
|
Votes Against |
|
Abstentions |
| 8,896,487 |
|
1,702 |
|
100,000 |
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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3.1 |
Amended and Restated Certificate of Incorporation, dated September 5, 2014 |
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10.1 |
Amended and Restated Investment Management Trust Agreement, dated September 5, 2014, by and between Chart Acquisition Corp. and Continental Stock Transfer & Trust Company. |
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.
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CHART ACQUISITION CORP. |
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| Date: September 5, 2014 |
By: |
/s/ Michael LaBarbera |
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Name: Michael LaBarbera |
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Title: Chief Financial Officer |
4
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 (the “Prior Certificate”) was filed
with the Secretary of State of Delaware on December 13, 2012.
3. 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.
4. This
Amended and Restated Certificate restates, integrates and further amends the provisions of the Prior Certificate.
5. Certain
capitalized terms used in this Amended and Restated Certificate are defined where appropriate herein.
6. 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.
Section4.4 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.
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 second 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.
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.
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 the 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.”
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).
(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 27 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 Investment Management Trust Agreement, dated December 13, 2012, 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.
(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.
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 5th day of September, 2014.
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CHART ACQUISITION CORP. |
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By: |
/s/ Michael LaBarbera |
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Michael LaBarbera |
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Chief Financial Officer and Secretary |
8
Exhibit 10.1
AMENDED AND RESTATED INVESTMENT
MANAGEMENT TRUST AGREEMENT
This amended
and restated investment management trust agreement (“Agreement”) is made as of September 5, 2014, 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”) have 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 have been 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, 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 September 13, 2014 (the “Original Termination
Date”) to March 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 Original 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 Original 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 Original Agreement to, among other things, reflect amendments to the Original 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 27-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 27 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.
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;
(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;
(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.
(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
150 East 42nd Street, 11th Floor
New York, New York 10017
Attn: Stuart Neuhauser, 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.
(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]
IN WITNESS
WHEREOF, the parties have duly executed this 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: |
Chief Financial and Trust Officer |
|
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|
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| CHART ACQUISITION CORP. |
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|
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| By: |
/s/
Michael LaBarbera |
|
| Name: |
Michael LaBarbera |
|
| Title: |
Chief Financial Officer |
|
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.
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 27-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.
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.
75 Rockefeller Plaza, 14th Floor,
New York, NY 10019
Attention: Michael LaBarbera |
|
(212) 350-8275 |
| |
|
|
| |
|
|
|
Ellenoff Grossman & Schole
LLP
150 East 42nd Street, 11th Floor
New York, New York 10017
Attn: Stuart Neuhauser, 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 September __, 2014 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.
cc: Deutsche Bank
Securities, Inc.
Cowen
and Company, LLC
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