WHEREAS, (A) Section 5.1(b)(xvii) of the Agreement provides in respect of FEAC that FEAC shall not, without the prior written consent of the Company, authorize or incur any capital expenditures or commitments, outside of the ordinary course of business, and (B) Section 5.1(b)(xx) of the Agreement provides in respect of FEAC that FEAC shall not, without the prior written consent of the Company, enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions.
WHEREAS, FEAC wishes to enter into a marketing and consulting agreement with Benjamin Securities, Inc. (“Benjamin Securities”) substantially in the form shared with the Company on or around the date of this waiver and consent letter (the “Marketing and Consulting Agreement”), pursuant to which Benjamin Securities will provide certain marketing and consulting services in connection with the Transactions.
WHEREAS, the Company wishes to approve and provide its written consent (as required by Section 5.1(b)(iv) of the Agreement with respect to the Third Working Capital Loan and as required by Section 5.1(b)(xvii) and Section 5.1(b)(xx) of the Agreement with respect to the Marketing and Consulting Agreement) to FEAC entering into, and performing its obligations under, the Third Working Capital Loan and the Marketing and Consulting Agreement, in each case for all purposes under the Agreement.
WHEREAS, Section 5.15 of the Agreement (taken together with Section 5.15 of the Company Disclosure Schedule) requires that the Parties shall take certain actions by certain dates with respect to the identity of the members of the board of directors of Newco, and that such actions will be described in the Plan of Arrangement and the Registration Statement/Proxy, and each Party now desires to waive the requirement to take such actions by the dates set forth in the Agreement and the Company Disclosure Schedule (without waiving the requirement to take such actions within the time periods required under applicable Law).
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties, intending to be legally bound, hereby agree and contract as follows:
ARTICLE 1 – CONSENTS
1.1 The Company and Newco hereby:
(a) consent to and approve, for all purposes under the Agreement, the waiver of the requirement of each Party to mail a Letter of Transmittal to their respective equity holders at least three (3) Business Days prior to the Closing Date;
(b) consent to and approve, for all purposes under the Agreement, FEAC entering into, and performing its obligations under, the Third Working Capital Loan and the Marketing and Consulting Agreement; and
(c) consent to and approve, for all purposes under the Agreement, all such further documents, agreements, authorizations, certificates, elections or other instruments and all such further actions that are necessary or desirable in order to enter into, execute and complete the foregoing items set forth in this Section 1.1.
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