0001140361-15-008524.txt : 20150224 0001140361-15-008524.hdr.sgml : 20150224 20150223201641 ACCESSION NUMBER: 0001140361-15-008524 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20150224 DATE AS OF CHANGE: 20150223 GROUP MEMBERS: BARINGTON CAPITAL GROUP, L.P. GROUP MEMBERS: JAMES A. MITAROTONDA GROUP MEMBERS: LNA CAPITAL CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BARINGTON/HILCO ACQUISITION CORP. CENTRAL INDEX KEY: 0001622175 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 471455824 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-88677 FILM NUMBER: 15641539 BUSINESS ADDRESS: STREET 1: 888 SEVENTH AVENUE, 17TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: (212)974-5710 MAIL ADDRESS: STREET 1: 888 SEVENTH AVENUE, 17TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Barington Companies Advisors, LLC CENTRAL INDEX KEY: 0001324906 IRS NUMBER: 200327470 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O BARINGTON CAPITAL GROUP, L.P. STREET 2: 888 SEVENTH AVENUE, 17TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: (212) 974-5732 MAIL ADDRESS: STREET 1: C/O BARINGTON CAPITAL GROUP, L.P. STREET 2: 888 SEVENTH AVENUE, 17TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D 1 formsc13d.htm BARINGTON COMPANIES ADVISORS, LLC SC 13D 2-11-2015 (BARINGTON/HILCO ACQUISITION CORP.)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO §240.13D-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Barington/Hilco Acquisition Corp.
(Name of Issuer)
Common Stock, par value $.0001
(Title of Class of Securities)
06759V1017
(CUSIP Number)
Mr. James A. Mitarotonda
Barington/Hilco Acquisition Corp.
888 Seventh Avenue, 17th Floor
New York, NY 10019
(212) 974-5700
 (Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

February 11, 2015
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  □
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
1
NAMES OF REPORTING PERSONS
 
 
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
 
Barington Companies Advisors, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
WC
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
651,375
 
 
 
 
8
SHARED VOTING POWER
 
 
0
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
651,375
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
0
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
651,375
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
11.4%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
OO
 
 
 
 
 
1
NAMES OF REPORTING PERSONS
 
 
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
 
Barington Capital Group, L.P.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
New York
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
651,375
 
 
 
 
8
SHARED VOTING POWER
 
 
0
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
651,375
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
0
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
651,375
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
11.4%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
PN
 
 
 
 
 
1
NAMES OF REPORTING PERSONS
 
 
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
 
LNA Capital Corp.
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
651,375
 
 
 
 
8
SHARED VOTING POWER
 
 
0
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
651,375
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
0
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
651,375
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
11.4%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
CO
 
 
 
 
 
1
NAMES OF REPORTING PERSONS
 
 
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
 
James A. Mitarotonda
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☐
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
PF, OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
United States of America
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
658,875
 
 
 
 
8
SHARED VOTING POWER
 
 
0
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
658,875
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
0
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
658,875
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
11.5%
 
 
 
 
14
TYPE OF REPORTING PERSON
 
 
IN
 
 
 
 
 
Item 1.
Security and Issuer.
 
This statement on Schedule 13D (the “Schedule 13D”) relates to the common stock, $0.0001 par value per share (the “Common Stock”), of Barington/Hilco Acquisition Corp., a Delaware corporation (the “Issuer”). The principal executive offices of the Issuer are located at 888 Seventh Avenue, 17th Floor, New York, NY 10019.
 
Item 2.
Identity and Background.
 
(a) - (c) This Statement is being filed by Barington Companies Advisors, LLC (“BCA”), Barington Capital Group, L.P., LNA Capital Corp. and James A. Mitarotonda (each, a “Reporting Entity” and, collectively, the “Reporting Entities”).
As of the close of business on February 23, 2015, the Reporting Entities are the beneficial owners of, in the aggregate, 658,875 shares of Common Stock, representing approximately 11.5% of the 5,738,069 shares of Common Stock issued and outstanding on that date (the “Issued and Outstanding Shares”).

Barington Companies Advisors, LLC is a Delaware limited liability company.  The principal business of Barington Companies Advisors, LLC is acquiring, holding and disposing of investments in various companies.  The address of the principal business and principal office of Barington Companies Advisors, LLC is 888 Seventh Avenue, 17th Floor, New York, New York 10019.  James A. Mitarotonda is the Managing Member of Barington Companies Advisors, LLC.

Barington Companies Advisors, LLC is a majority-owned subsidiary of Barington Capital Group, L.P.  Barington Capital Group, L.P. is a New York limited partnership.  The principal business of Barington Capital Group, L.P. is acquiring, holding and disposing of investments in various companies.  The address of the principal business and principal office of Barington Capital Group, L.P. is 888 Seventh Avenue, 17th Floor, New York, New York 10019.
The general partner of Barington Capital Group, L.P. is LNA Capital Corp.  LNA Capital Corp. is a Delaware corporation.  The principal business of LNA Capital Corp. is serving as the general partner of Barington Capital Group, L.P.  The address of the principal business and principal office of LNA Capital Corp. is c/o Barington Capital Group, L.P., 888 Seventh Avenue, 17th Floor, New York, New York 10019.  James A. Mitarotonda, a United States citizen, is the sole stockholder and director of LNA Capital Corp.  The executive officers of LNA Capital Corp. and their principal occupations and business addresses are set forth on Schedule I and incorporated herein by reference in this Item 2.  The principal occupation of Mr. Mitarotonda is serving as the Chairman and Chief Executive Officer of Barington Capital Group, L.P.  The business address of Mr. Mitarotonda is c/o Barington Capital Group, L.P., 888 Seventh Avenue, 17th Floor, New York, New York 10019.
The Reporting Entities do not believe that certain of the foregoing information is called for by the Items of Schedule 13D and are disclosing it for supplemental informational purposes only.  Information with respect to each Reporting Entity is given solely by such Reporting Entity and no Reporting Entity shall have responsibility for the accuracy or completeness of information supplied by another Reporting Entity.

 (d) - (e) During the last five years, none of the Reporting Entities or any other person identified in response to this Item 2 was convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
(f) Each natural person identified in Item 2 is a citizen of the United States.
Item 3.
Source and Amount of Funds or Other Consideration.
 
Funds for the purchase of 651,375 of the securities reported herein were derived from available working capital of BCA.
Funds for the purchase of 7,500 of the securities reported herein were derived from Mr. Mitarotonda’s private funds.
Item 4.
Purpose of Transaction.
 
Insider Shares
BCA purchased 528,875 shares of Common Stock (the “Insider Shares”) on September 17, 2014 for an aggregate purchase price of $10,577.50 in cash, or approximately $0.02 per share, and Mr. Mitarotonda purchased 7,500 Insider Shares on September 17, 2014 for an aggregate purchase price of $150.00 in cash, or approximately $0.02 per share.  The terms of the Insider Shares are governed by the letter agreements with the Issuer effective as of February 5, 2015 (the “Insider Letters”),
Private Units
Pursuant to a subscription agreement dated as of February 5, 2015 between BCA and the Issuer (the “Subscription Agreement”), BCA agreed to purchase 122,500 units (the “Private Units”) on the date that the Issuer’s initial public offering was consummated. Each Private Unit consists of (i) one share of Common Stock, (ii) one right to receive one-tenth of one share of Common Stock automatically on the consummation of an initial business combination and (iii) one warrant entitling the holder thereof to purchase one-half of one share of Common Stock at a price of $12.50 per full share (the “Private Warrants”). The Private Warrants become exercisable on the later of the completion of the Issuer’s initial business combination and February 5, 2016, and will expire three years after the completion of the Issuer’s initial business combination.
On February 11, 2015, the Issuer consummated its initial public offering of 4,000,000 units, and, pursuant to the Subscription Agreement, BCA purchased 122,500 Private Units.
Stock Escrow Agreement
Pursuant to a Stock Escrow Agreement between the Issuer, BCA and Continental Stock Transfer & Trust Company (the “Stock Escrow Agreement”), on February 5, 2015, the Insider Shares were placed into an escrow account maintained in New York, New York by Continental Stock Transfer & Trust Company, acting as escrow agent. Subject to certain limited exceptions, 50% of the Insider Shares will not be transferred, assigned, sold or released from escrow until the earlier of one year after the date of the consummation of the Issuer’s initial business combination and the date on which the closing price of the Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Issuer’s initial business combination and the remaining 50% of the Insider Shares will not be transferred, assigned, sold or released from escrow until one year after the date of the consummation of the Issuer’s initial business combination, or earlier, in either case, if, subsequent to our initial business combination, the Issuer completes a liquidation, merger, stock exchange or other similar transaction which results in all of the Issuer’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property. The limited exceptions referred to above include (1) transfers among the insiders, to the Issuer’s officers, directors, advisors and employees, (2) transfers to an insider’s affiliates or its members upon its liquidation, (3) transfers to relatives and trusts for estate planning purposes, (4) transfers by virtue of the laws of descent and distribution upon death, (5) transfers pursuant to a qualified domestic relations order, (6) private sales made at prices no greater than the price at which the securities were originally purchased or (7) transfers to the Issuer for cancellation in connection with the consummation of an initial business combination, in each case (except for clause 7) where the transferee agrees to the terms of the escrow agreement and forfeiture, as the case may be, as well as the other applicable restrictions and agreements of the holders of the Insider Shares including, but not limited to, the terms of the Insider Letters.
 
Registration Rights
The holders of the Insider Shares issued and outstanding on the date of the prospectus associated with the Issuer’s initial public offering, as well as the holders of the Private Units (and underlying securities) and any shares the Issuer’s insiders, officers, directors or their affiliates may be issued in payment of working capital loans made to the Issuer, will be entitled to registration rights pursuant to a registration rights agreement entered into on February 5, 2015 among the Issuer, BCA and EarlyBirdCapital, Inc. (the “Registration Rights Agreement”). The holders of a majority of these securities are entitled to make up to two demands that the Issuer register such securities. The holders of the majority of the Insider Shares can elect to exercise these registration rights at any time commencing three months prior to the date on which these shares of common stock are to be released from escrow. The holders of a majority of the private units or shares issued in payment of working capital loans made to us can elect to exercise these registration rights at any time after the Issuer consummates a business combination. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed by the Issuer subsequent to the consummation of the Issuer’s initial business combination.
Item 5.
Interest in Securities of the Issuer.
 
(a)        As of the close of business on February 23, 2015, BCA beneficially owns an aggregate of 651,375 shares of Common Stock, representing approximately 11.4% of the Issued and Outstanding Shares.  As the majority member of BCA, Barington Capital Group, L.P. may be deemed to beneficially own the 651,375 shares of Common Stock beneficially owned by BCA.  As the general partner of Barington Capital Group, L.P., LNA Capital Corp. may be deemed to beneficially own the 651,375 shares of Common Stock beneficially owned by BCA.  As the sole stockholder and director of LNA Capital Corp., James A. Mitarotonda may be deemed to beneficially own the 651,375 shares of Common Stock beneficially owned by BCA.  In addition, Mr. Mitarotonda owns 7,500 shares of Common Stock in his personal capacity.  Mr. Mitarotonda has sole voting and dispositive power with respect to the 285,582 shares of Common Stock beneficially owned by BCA and the 7,500 shares of Common Stock he owns in his personal capacity.  Mr. Mitarotonda disclaims beneficial ownership of the 651,375 shares of Common Stock beneficially owned by BCA except to the extent of his pecuniary interest therein.
 
The Reporting Entities do not believe that certain of the foregoing information is called for by the Items of Schedule 13D and are disclosing it for supplemental informational purposes only.  Information with respect to each Reporting Entity is given solely by such Reporting Entity and no Reporting Entity shall have responsibility for the accuracy or completeness of information supplied by another Reporting Entity.
(b)       Barington Companies Advisors, LLC, Barington Capital Group, L.P., LNA Capital Corp. and James A. Mitarotonda believe that, by virtue of their respective positions described in paragraph (a), each of them may be deemed to have sole voting and dispositive power over the shares of Common Stock reported as beneficially owned by such person, regardless of the fact that multiple persons within the same chain of ownership report sole voting and dispositive power with respect to such shares.  Each such person reports sole voting and dispositive power with respect to such shares based on such person’s relationship to the other persons within the same chain of ownership.
 
Except to the extent expressly stated herein, each Reporting Entity disclaims beneficial ownership of any shares of Common Stock beneficially owned by any other Reporting Entity.

(c)       Other than the transactions described in Items 3 and 4 above, the Reporting Persons have not effected any transactions in the Common Stock in the past 60 days.
(d)       Not applicable.
(e)       Not applicable.
Item 6.
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Company.
 
Other than the agreements described in Exhibits 1-5 hereto, as of the date hereof, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 hereof and between such persons and any person with respect to any securities of the Issuer.
Item 7.
Material to be Filed as Exhibits.
 
1. Insider Letter, dated as of  February 5, 2015 between the Issuer and BCA.
2. Insider Letter, dated as of February 5, 2015 between the Issuer and Mr. Mitarotonda.
3. Subscription Agreement, dated as of February 5, 2015 between the Issuer and BCA.
4. Stock Escrow Agreement, dated as of February 5, 2015 between Continental Stock Transfer & Trust Company and the Company (incorporated by reference to Exhibit 10.2 to the Issuer’s Registration Statement on Form S-1 (File No. 333-200180), filed with the Securities and Exchange Commission on January 27, 2015).

5. Registration Rights Agreement, dated as of February 5, 2015 between the Issuer and certain Investors (incorporated by reference to Exhibit 10.6 to the Issuer’s Registration Statement on Form S-1 (File No. 333200180), filed with the Securities and Exchange Commission on January 27, 2015).
 
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
Date: February 23, 2015
  
   
 
BARINGTON COMPANIES ADVISORS LLC
   
  By:
/s/ James A. Mitarotonda
 
Name:   James A. Mitarotonda
 
Title:     Managing Member
   
 
BARINGTON CAPITAL GROUP, L.P.
 
  By: 
LNA Capital Corp., its general  partner
   
  By: 
/s/ James A. Mitarotonda
 
Name: James A. Mitarotonda
 
Title:   President and CEO
   
   
 
LNA CAPITAL CORP.
   
  By: 
/s/ James A. Mitarotonda
 
Name: James A. Mitarotonda
 
Title:   President and CEO
   
 
/s/ James A. Mitarotonda
 
James A. Mitarotonda
 
[Signature Page to Schedule 13D]
 
SCHEDULE I
Officers of LNA Capital Corp.
Name and Position
Principal Occupation
Principal Business Address
     
James A. Mitarotonda
Chairman, President, CEO and Treasurer
Chairman and Chief Executive Officer of Barington Capital
Group, L.P.
888 Seventh Avenue
17th Floor
New York, NY 10019
     
Jared L. Landaw
Secretary
Chief Operating Officer and General Counsel of Barington Capital Group, L.P.
888 Seventh Avenue
17th Floor
New York, NY 10019

 
 EX-10.1 2 ex10_1.htm EXHIBIT 10.1
Exhibit 10.1
 
 
February 5, 2015
 
Barington/Hilco Acquisition Corp
 
888 Seventh Avenue, 17th Floor
 
New York, New York 10019

EarlyBirdCapital, Inc.
366 Madison Avenue, 8th Floor
New York, New York 10017

Re: Initial Public Offering

Gentlemen:

This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Barington/Hilco Acquisition Corp., a Delaware corporation (the “Company”), and EarlyBirdCapital, Inc., as Representative (the “Representative”) of the several Underwriters named in Schedule I thereto (the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) 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”), one right (“Right”) to receive one-tenth of one share of Common Stock upon consummation of the Company’s initial Business Combination and one warrant (“Warrant”) entitling the holder to purchase one-half (1/2) of one share of Common Stock.  Certain capitalized terms used herein are defined in paragraph 15 hereof.

In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned as a stockholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:

1.             If the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of Common Stock beneficially owned by him, her or it, whether acquired before, in or after the IPO, in favor of such Business Combination.
 
2.             (a)  In the event that the Company fails to consummate a Business Combination within the time period required by the Company’s Certificate of Incorporation, the undersigned shall take all reasonable steps to (i) cause the Company to cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but no more than ten business days after the expiration of such period, cause the Trust Fund to be liquidated and distributed to the holders of IPO Shares and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining holders of Common Stock and the Board of Directors, cause the Company to dissolve and liquidate, subject (in the case of (ii) and (iii) above) to the Company’s obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law.

(b)  The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Fund and any remaining net assets of the Company as a result of such liquidation with respect to his, her or its Insider Shares or Private Units (and the underlying shares of Common Stock) (“Claim”) and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever.  The undersigned acknowledges and agrees that there will be no distribution from the Trust Fund with respect to any Rights or Warrants underlying the Private Units, all rights of which will terminate on the Company’s liquidation.

(c)  In the event of the liquidation of the Trust Fund, the undersigned agrees to indemnify and hold harmless the Company against any loss, cost and expense which the Company may incur as a result of any claim by any vendor or other person who is owed money by the Company for services rendered or products sold or contracted for, but only to the extent necessary to ensure that such loss, cost or expense does not reduce the amount of funds in the Trust Fund; provided that such indemnity shall not apply if such vendor or other person has executed an agreement waiving claims against the Trust Fund.

3.             The undersigned will escrow all of his, her or its Insider Shares pursuant to the terms of a Stock Escrow Agreement which the Company will enter into with the undersigned and an escrow agent acceptable to the Company.

4.             The undersigned agrees that until the Company consummates a Business Combination, the undersigned’s Private Units will be subject to the transfer restrictions described in the Subscription Agreement relating to the undersigned’s Private Units.

5.             In order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present to the Company for its consideration, prior to presentation to any other person or entity, any suitable opportunity to acquire a target business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company, subject to any pre-existing fiduciary and contractual obligations the undersigned might have.
 
6.             The undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated with any Insiders of the Company or their affiliates, including any company that is a portfolio company of, or otherwise affiliated with, or has received financial investment from, an entity with which any Insider or their affiliates is affiliated, such transaction must be approved by a majority of the Company’s disinterested independent directors and the Company must obtain an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s unaffiliated stockholders from a financial point of view.

7.             Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive and will not accept any compensation or other cash payment prior to, or for services rendered in order to effectuate, the consummation of the Business Combination; provided that the Company shall be allowed to repay working capital loans made by the undersigned to the Company in cash upon consummation of the Business Combination or, at the undersigned’s discretion, with respect to up to an aggregate of $500,000 of working capital loans from all lenders, by converting such loans into units at a price of $10.00 per unit, as more fully described in the Registration Statement.  Notwithstanding the foregoing, the undersigned and any affiliate of the undersigned shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred in connection with identifying, investigating and consummating a Business Combination.

8.             Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned or any affiliate of the undersigned originates a Business Combination.

9.             The undersigned represents and warrants that:

(a) he/she/it has never had a petition under the federal bankruptcy laws or any state insolvency law been filed by or against (i) him/her/it or any partnership in which he/she/it was a general partner at or within two years before the time of filing; or (ii) any corporation or business association of which he/she/it was an executive officer at or within two years before the time of such filing;
(b) he/she/it has never had a receiver, fiscal agent or similar officer been appointed by a court for his/her/its business or property, or any such partnership;
 
(c) he/she/it has never been convicted of fraud in a civil or criminal proceeding;
 
(d) he/she/it/ has never been convicted in a criminal proceeding or named the subject of a pending criminal proceeding (excluding traffic violations and minor offenses);
(e) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him/her/it from (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission (“CFTC”) or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type of business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of federal or state securities or federal commodities laws;
(f) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days your right to engage in any activity described in 9(e)(i) above, or to be associated with persons engaged in any such activity;
(g) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, where the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated;
 
(h) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the CFTC to have violated any federal commodities law, where the judgment in such civil action or finding by the CFTC has not been subsequently reversed, suspended or vacated;
 
(i) he/she/it has never been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any Federal or State securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity;
(j) he/she/it has never been the subject of, or party to, any sanction or order, not subsequently reversed, suspended or vacated, or any self-regulatory organization, any registered entity, or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member;
(k) he/she/it has never been convicted of any felony or misdemeanor: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment advisor or paid solicitor of purchasers of securities;
(l) he/she/it was never subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that is based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct;
(m) he/she/it has never been subject to any order, judgment or decree of any court of competent jurisdiction, that, at the time of such sale, restrained or enjoined him/her/it from engaging or continuing to engage in any conduct or practice: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities;
 
(n) he/she/it has never been subject to any order of the SEC that orders him/her/it to cease and desist from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the federal securities laws, including, but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Section 206(1) of the Advisers Act or any other rule or regulation thereunder; or (ii) Section 5 of the Securities Act;
(o) he/she/it has never been named as an underwriter in any registration statement or Regulation A offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A exemption, or is, currently, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued;
(p) he/she/it has never been subject to a United States Postal Service false representation order, or is currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations;
(q) he/she/it is not subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that bars the undersigned from: (i) association with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit union activities;
 
(r) he/she/it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) or section 203(e) or 203(f) of the Investment Advisers Act of 1940 (the “Advisers Act”) that: (i) suspends or revokes the undersigned’s registration as a broker, dealer, municipal securities dealer or investment adviser; (ii) places limitations on the activities, functions or operations of, or imposes civil money penalties on, such person; or (iii) bars the undersigned from being associated with any entity or from participating in the offering of any penny stock; and
 
(s) he/she/it has never been suspended or expelled from membership in, or suspended or barred from association with a member of, a securities self-regulatory organization (e.g., a registered national securities exchange or a registered national or affiliated securities association) for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.

10.           The undersigned has full right and power, without violating any agreement by which he is bound, to enter into this letter agreement.

11.           The undersigned hereby waives his, her or its right to exercise conversion rights with respect to any shares of the Common Stock owned or to be owned by the undersigned, directly or indirectly, whether purchased by the undersigned prior to the IPO, in the IPO or in the aftermarket, and agrees that he, she or it will not seek conversion with respect to or otherwise sell, such shares in connection with any vote to approve a Business Combination with respect thereto.

12.           The undersigned hereby agrees to not propose, or vote in favor of, an amendment to Article Sixth of the Company’s Amended and Restated Certificate of Incorporation prior to the consummation of a Business Combination unless the Company offers dissenting holders the right to have their shares converted into a pro rata portion of the monies held in the Trust Fund.

13.           In the event that the Company does not consummate a Business Combination and must liquidate and its remaining net assets are insufficient to complete such liquidation, the undersigned agrees to advance such funds in an amount not to exceed $7,500 to complete such liquidation and agrees not to seek repayment for such expenses.

14.           This letter agreement shall be governed by and construed and enforced in accor­dance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.  The undersigned hereby (i) agrees that any action, proceeding or claim against him, her or it arising out of or relating in any way to this letter agreement (a “Proceeding”) shall be brought and enforced in the courts of the State of New York of the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclu­sive, (ii) waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum and (iii) irrevocably agrees to appoint Kramer Levin Naftalis & Frankel LLP as agent for the service of process in the State of New York to receive, for the undersigned and on his, her or its behalf, service of process in any Proceeding.  
 
15.           As used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders” shall mean all officers, directors and stockholders of the Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the Company acquired by an Insider prior to the IPO; (iv) “IPO Shares” shall mean the shares of Common Stock issued in the Company’s IPO; (v) “Private Units” shall mean the Units purchased in the private placement taking place simultaneously with the consummation of the Company’s IPO; (vi) “Registration Statement” means the registration statement on Form S-1 filed by the Company with respect to the IPO; and (vii) “Trust Fund” shall mean the trust fund into which a portion of the net proceeds of the Company’s IPO will be deposited.

16.           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 or facsimile transmission.

17.           No party hereto may assign either this letter agreement or any of its 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 the parties hereto and any successors and assigns thereof.

18.           The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO.

 
James A. Mitarotonda
 
Print Name of Insider
 
 
 
 
  /s/ James A. Mitarotonda
 
Signature
 
 
 
 EX-10.2 3 ex10_2.htm EXHIBIT 10.2
Exhibit 10.2
 
 
February 5, 2015
 
Barington/Hilco Acquisition Corp
  
888 Seventh Avenue, 17th Floor
  
New York, New York 10019
  
   
EarlyBirdCapital, Inc.
  
366 Madison Avenue, 8th Floor
  
New York, New York 10017
  

Re: Initial Public Offering

Gentlemen:

This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Barington/Hilco Acquisition Corp., a Delaware corporation (the “Company”), and EarlyBirdCapital, Inc., as Representative (the “Representative”) of the several Underwriters named in Schedule I thereto (the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) 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”), one right (“Right”) to receive one-tenth of one share of Common Stock upon consummation of the Company’s initial Business Combination and one warrant (“Warrant”) entitling the holder to purchase one-half (1/2) of one share of Common Stock.  Certain capitalized terms used herein are defined in paragraph 15 hereof.

In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned as a stockholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:

1.             If the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of Common Stock beneficially owned by him, her or it, whether acquired before, in or after the IPO, in favor of such Business Combination.
 
2.             (a)  In the event that the Company fails to consummate a Business Combination within the time period required by the Company’s Certificate of Incorporation, the undersigned shall take all reasonable steps to (i) cause the Company to cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but no more than ten business days after the expiration of such period, cause the Trust Fund to be liquidated and distributed to the holders of IPO Shares and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining holders of Common Stock and the Board of Directors, cause the Company to dissolve and liquidate, subject (in the case of (ii) and (iii) above) to the Company’s obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law.

(b)  The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Fund and any remaining net assets of the Company as a result of such liquidation with respect to his, her or its Insider Shares or Private Units (and the underlying shares of Common Stock) (“Claim”) and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever.  The undersigned acknowledges and agrees that there will be no distribution from the Trust Fund with respect to any Rights or Warrants underlying the Private Units, all rights of which will terminate on the Company’s liquidation.

3.             The undersigned will escrow all of his, her or its Insider Shares pursuant to the terms of a Stock Escrow Agreement which the Company will enter into with the undersigned and an escrow agent acceptable to the Company.

4.             The undersigned agrees that until the Company consummates a Business Combination, the undersigned’s Private Units will be subject to the transfer restrictions described in the Subscription Agreement relating to the undersigned’s Private Units.

5.             In order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present to the Company for its consideration, prior to presentation to any other person or entity, any suitable opportunity to acquire a target business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company, subject to any pre-existing fiduciary and contractual obligations the undersigned might have.

6.             The undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated with any Insiders of the Company or their affiliates, including any company that is a portfolio company of, or otherwise affiliated with, or has received financial investment from, an entity with which any Insider or their affiliates is affiliated, such transaction must be approved by a majority of the Company’s disinterested independent directors and the Company must obtain an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s unaffiliated stockholders from a financial point of view.
 
7.             Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive and will not accept any compensation or other cash payment prior to, or for services rendered in order to effectuate, the consummation of the Business Combination; provided that the Company shall be allowed to repay one or more non-interest bearing loans up to an aggregate amount of $125,000 made to the Company by the undersigned to cover IPO and related expenses; provided further that the Company shall be allowed to pay $7,500 per month to Barington Capital Group, L.P., an affiliate of the undersigned, for general and administrative services including, without limitation, office space, utilities and administrative support; provided further that the Company shall be allowed to repay working capital loans made by the undersigned to the Company in cash upon consummation of the Business Combination or, at the undersigned’s discretion, with respect to up to an aggregate of $500,000 of working capital loans from all lenders, by converting such loans into units at a price of $10.00 per unit, as more fully described in the Registration Statement.  Notwithstanding the foregoing, the undersigned and any affiliate of the undersigned shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred in connection with identifying, investigating and consummating a Business Combination.

8.             Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned or any affiliate of the undersigned originates a Business Combination.

9.             The undersigned agrees to be the Chairman of the Board and the Chief Executive Officer of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company.  The undersigned’s biographical information previously furnished to the Company and the Representative is true and accurate in all material respects, does not omit any material information with respect to the undersigned’s biography and, to the best of the undersigned’s knowledge, contains all of the information required to be disclosed pursuant to Item 401 of Regulation S-K, promulgated under the Securities Act of 1933, as amended.  The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative is true and accurate in all material respects.  The undersigned represents and warrants that:

(a) he/she/it has never had a petition under the federal bankruptcy laws or any state insolvency law been filed by or against (i) him/her/it or any partnership in which he/she/it was a general partner at or within two years before the time of filing; or (ii) any corporation or business association of which he/she/it was an executive officer at or within two years before the time of such filing;
 
(b) he/she/it has never had a receiver, fiscal agent or similar officer been appointed by a court for his/her/its business or property, or any such partnership;
(c) he/she/it has never been convicted of fraud in a civil or criminal proceeding;
(d) he/she/it/ has never been convicted in a criminal proceeding or named the subject of a pending criminal proceeding (excluding traffic violations and minor offenses);
(e) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him/her/it from (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission (“CFTC”) or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type of business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of federal or state securities or federal commodities laws;
(f) he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days your right to engage in any activity described in 9(e)(i) above, or to be associated with persons engaged in any such activity;
(g) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, where the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated;
(h) he/she/it has never been found by a court of competent jurisdiction in a civil action or by the CFTC to have violated any federal commodities law, where the judgment in such civil action or finding by the CFTC has not been subsequently reversed, suspended or vacated;
 
(i) he/she/it has never been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any Federal or State securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity;
(j) he/she/it has never been the subject of, or party to, any sanction or order, not subsequently reversed, suspended or vacated, or any self-regulatory organization, any registered entity, or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member;
(k) he/she/it has never been convicted of any felony or misdemeanor: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment advisor or paid solicitor of purchasers of securities;
(l) he/she/it was never subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that is based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct;
(m) he/she/it has never been subject to any order, judgment or decree of any court of competent jurisdiction, that, at the time of such sale, restrained or enjoined him/her/it from engaging or continuing to engage in any conduct or practice: (i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities;
 
(n) he/she/it has never been subject to any order of the SEC that orders him/her/it to cease and desist from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the federal securities laws, including, but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Section 206(1) of the Advisers Act or any other rule or regulation thereunder; or (ii) Section 5 of the Securities Act;
(o) he/she/it has never been named as an underwriter in any registration statement or Regulation A offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A exemption, or is, currently, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued;
(p) he/she/it has never been subject to a United States Postal Service false representation order, or is currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations;
(q) he/she/it is not subject to a final order of a state securities commission (or an agency of officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that bars the undersigned from: (i) association with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit union activities;
(r) he/she/it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) or section 203(e) or 203(f) of the Investment Advisers Act of 1940 (the “Advisers Act”) that: (i) suspends or revokes the undersigned’s registration as a broker, dealer, municipal securities dealer or investment adviser; (ii) places limitations on the activities, functions or operations of, or imposes civil money penalties on, such person; or (iii) bars the undersigned from being associated with any entity or from participating in the offering of any penny stock; and
 
(s) he/she/it has never been suspended or expelled from membership in, or suspended or barred from association with a member of, a securities self-regulatory organization (e.g., a registered national securities exchange or a registered national or affiliated securities association) for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.

10.           The undersigned has full right and power, without violating any agreement by which he is bound, to enter into this letter agreement and to serve as Chairman of the Board and the Chief Executive Officer of the Company.

11.           The undersigned hereby waives his, her or its right to exercise conversion rights with respect to any shares of the Common Stock owned or to be owned by the undersigned, directly or indirectly, whether purchased by the undersigned prior to the IPO, in the IPO or in the aftermarket, and agrees that he, she or it will not seek conversion with respect to or otherwise sell, such shares in connection with any vote to approve a Business Combination with respect thereto.

12.           The undersigned hereby agrees to not propose, or vote in favor of, an amendment to Article Sixth of the Company’s Amended and Restated Certificate of Incorporation prior to the consummation of a Business Combination unless the Company offers dissenting holders the right to have their shares converted into a pro rata portion of the monies held in the Trust Fund.

14.           This letter agreement shall be governed by and construed and enforced in accor­dance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.  The undersigned hereby (i) agrees that any action, proceeding or claim against him, her or it arising out of or relating in any way to this letter agreement (a “Proceeding”) shall be brought and enforced in the courts of the State of New York of the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclu­sive, (ii) waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum and (iii) irrevocably agrees to appoint Kramer Levin Naftalis & Frankel LLP as agent for the service of process in the State of New York to receive, for the undersigned and on his, her or its behalf, service of process in any Proceeding.  

15.           As used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders” shall mean all officers, directors and stockholders of the Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the Company acquired by an Insider prior to the IPO; (iv) “IPO Shares” shall mean the shares of Common Stock issued in the Company’s IPO; (v) “Private Units” shall mean the Units purchased in the private placement taking place  simultaneously with the consummation of the Company’s IPO; (vi) “Registration Statement” means the registration statement on Form S-1 filed by the Company with respect to the IPO; and (vii) “Trust Fund” shall mean the trust fund into which a portion of the net proceeds of the Company’s IPO will be deposited.
 

16.           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 or facsimile transmission.

17.           No party hereto may assign either this letter agreement or any of its 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 the parties hereto and any successors and assigns thereof.

18.           The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO.

 
James A. Mitarotonda
 
Print Name of Insider
   
  /s/ James A. Mitarotonda
 
Signature
 
 
 EX-10.3 4 ex10_3.htm EXHIBIT 10.3
Exhibit 10.3
 
 
February 5, 2015
 
Barington/Hilco Acquisition Corp
  
888 Seventh Avenue, 17th Floor
  
New York, New York 10019
  

Gentlemen:
Barington/Hilco Acquisition Corp. (the “Corporation”), a blank check company formed for the purpose of acquiring one or more businesses or entities (a “Business Combination”), intends to register its securities under the Securities Act of 1933, as amended (the “Securities Act”), in connection with its initial public offering (the “IPO”).
The undersigned previously purchased _________ shares (the “Insider Shares”) of Common Stock, par value $.0001 per share (the “Common Stock”), of the Corporation at approximately $0.02 per Insider Share, for a purchase price of $__________.  The undersigned acknowledges and agrees that if the underwriters in the IPO determine the size of the offering should be increased or decreased, the undersigned will either receive a dividend on his/her/its Insider Shares or contribute a portion of his/her/its Insider Shares back to capital, as applicable, in order to maintain the ownership of the Corporation’s initial stockholders at a certain percentage of the number of shares to be sold in the offering.  Any increase or decrease will affect all holders of Insider Shares on a pro-rata basis.
The undersigned further commits to purchase ________ units of the Corporation (the “Insider Units”), each Insider Unit consisting of one share of Common Stock, one right to receive one-tenth of one share of Common Stock of the Corporation and one warrant for the purchase of one-half of one share of Common Stock of the Corporation at an exercise price of $12.50 per full share, for a purchase price of $_______ (the “Purchase Price”).  The undersigned has delivered the Purchase Price to Kramer Levin Naftalis & Frankel LLP (“KLNF”), counsel for the Corporation, to be held in an interest bearing account until the Corporation consummates the IPO and over-allotment option, if any, together with an originally executed Form W-9.  The undersigned acknowledges and agrees that if the underwriters in the IPO determine that additional Insider Units must be purchased in order to consummate the IPO based on market conditions at that time, and Barington Capital Group, L.P. and Hilco Trading, Inc. (collectively, the “Barington/Hilco Parties”) agree that such determination is reasonable and acceptable, each of the undersigned will be required to purchase a proportionate number of additional Insider Units, pro rata with the other holders of Insider Units.  Under such circumstances, the undersigned agrees that it will deliver the purchase price for such additional Insider Units to KLNF as promptly as is reasonably practicable following written notice from the Corporation of such decision.  In the event that the undersigned breaches his/her/its purchase obligations set forth above and does not purchase all or any portion of such additional Insider Units, the other purchasers of the Insider Units will have the ability, but not the obligation, to satisfy the undersigned’s purchase obligation (and if they do, then the undersigned will sell, at the original cost, the Insider Shares held by the undersigned to the other purchasers of Insider Units who satisfy the undersigned’s purchase obligation).  The undersigned is aware that the Company will not issue fractional shares in connection with the exercise of the warrants.
 
The consummation of the purchase and issuance of the Insider Units shall occur simultaneously with the consummation of the IPO.  Simultaneously with the consummation of the IPO, KLNF shall (i) deposit the Purchase Price, without interest or deduction, into the trust fund (the “Trust Fund”) established by the Corporation for the benefit of the Corporation’s public stockholders as described in the Corporation’s registration statement filed in connection with the IPO (the “Registration Statement”) and (ii) deliver the pro rata portion of all interest earned on the Purchase Price to each of the undersigned parties.  If the Corporation does not complete the IPO within six (6) months from the date of this letter (subject to a six (6) month extension at the Corporation’s option in its sole discretion), KLNF shall return the Purchase Price (plus interest earned thereon) to the undersigned.
Each of the Corporation and the undersigned acknowledges and agrees that KLNF is serving hereunder solely as a convenience to the parties to facilitate the purchase of the Insider Units and KLNF’s sole obligation under this letter agreement is to act with respect to holding and disbursing the Purchase Price for the Insider Units as described above.  KLNF shall not be liable to the Corporation or the undersigned or any other person or entity in respect of any act or failure to act hereunder or otherwise in connection with performing its services hereunder unless KLNF has acted in a manner constituting gross negligence, willful misconduct or material breach of its obligations set forth in the prior paragraph (following receipt of written notice thereof and a reasonable opportunity to cure).  The Corporation shall indemnify KLNF against any claim made against it (including reasonable attorney’s fees) by reason of it acting or failing to act in connection with this letter agreement except as a result of its gross negligence, willful misconduct or material breach of its obligations set forth in the prior paragraph (following receipt of written notice thereof and a reasonably opportunity to cure).  KLNF may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Insider Shares will be identical to the shares of Common Stock included in the units to be sold by the Corporation in the IPO, and the Insider Units will be identical to the units to be sold by the Corporation in the IPO, except that:
· up to 150,000 of the Insider Shares will be subject to forfeiture to the extent that the underwriters do not exercise their over-allotment option in the IPO in full;
· each of the undersigned parties agrees to vote its Insider Shares and shares of Common Stock included in the Insider Units in favor of any proposed Business Combination;
 
· the Insider Shares will be placed in escrow, subject to the terms of an escrow agreement reasonably acceptable to the undersigned, will not be released until (A) the earlier of six months after the completion of a Business Combination and the date on which the closing price of the Common Stock exceeds $12.50 for any 20 trading days within a 30-trading day period following the completion of a Business Combination with respect to 50% of the Insider Shares and (B) one year after the completion of a Business Combination with respect to the remaining 50% of the Insider Shares, in each case subject to certain exceptions, and may only be transferred during this time period (i) amongst the initial purchasers of the Insider Shares, to the Corporation’s officers, directors and employees, to a holder’s affiliates, or to its members upon its liquidation, (ii) to relatives and trusts for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death, (iv) pursuant to a qualified domestic relations order, (v) by private sales at prices no greater than the price at which the Insider Shares were originally purchased or (vi) to the Corporation for cancellation in connection with the consummation of a Business Combination, in each case (except for clause (vi)) where the transferee agrees to the terms of the escrow agreement;
· the Insider Units and underlying securities will not be transferable (except (i) amongst the initial purchasers of the Insider Shares, to the Corporation’s officers, directors and employees, to a holder’s affiliates, or to its members upon its liquidation, (ii) to relatives and trusts for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death, (iv) pursuant to a qualified domestic relations order, (v) by private sales at prices no greater than the price at which the Insider Units were originally purchased or (vi) to the Corporation for cancellation in connection with the consummation of a Business Combination, in each case (except for clause vi) where the transferee agrees to the terms of the transfer restrictions) until after the completion of a Business Combination;
· the Insider Shares and Insider Units will be subject to customary registration rights, which shall be described in the Registration Statement;
· the undersigned will not participate in any liquidation distribution with respect to the Insider Shares or Insider Units (but will participate in liquidation distributions with respect to any units or shares of Common Stock purchased by the undersigned in the IPO or in the open market) if the Corporation fails to consummate a Business Combination;
· the Insider Shares and Insider Units will include any additional terms or restrictions as is customary in other similarly structured blank check company offerings or as may be reasonably required by the underwriters in the IPO in order to consummate the IPO, to the extent such terms and restrictions are reasonably acceptable to the Barington/Hilco Parties, each of which will be set forth in the Registration Statement; and
· the warrants included in the Insider Units will be exercisable for cash (even if a registration statement covering the shares of common stock issuable upon exercise of the such warrants is not effective) or on a cashless basis at the holder’s option and will not be redeemable by the Corporation, in each case so long as they are held by the initial purchases or their affiliates.
 
The undersigned further acknowledges and agrees that if, in order to consummate any Business Combination, the holders of Insider Shares or Insider Units are required to contribute back to the capital of the Corporation a portion of any such securities to be cancelled by the Corporation, the undersigned will contribute back to the capital of the Corporation a proportionate number of Insider Shares or Insider Units, as applicable, pro rata with the other holders of Insider Shares or Insider Units, as applicable.
The undersigned acknowledges and agrees that he/she/it will execute agreements in form and substance typical for transactions of this nature necessary to effectuate the foregoing agreements and obligations prior to the consummation of the IPO as are reasonably acceptable to the Barington/Hilco Parties, including but not limited to (i) an insider letter, (ii) subscription agreements, (iii) an escrow agreement and (iv) a registration rights agreement.
The undersigned hereby represents and warrants that, as applicable:
(a) he/she/it has been advised that the Insider Shares and Insider Units have not been registered under the Securities Act;
(b) he/she/it is acquiring the Insider Shares and Insider Units for his/her/its account for investment purposes only;
(c) he/she/it has no present intention of selling or otherwise disposing of the Insider Shares and Insider Units in violation of the securities laws of the United States;
(d) he/she/it is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended;
(e) he/she/it is aware that investing in the Corporation involves a high degree of risk and has such business and financial experience and capacity as is necessary to evaluate and assume such risks, including the complete loss of its investment;
(f) he/she/it has had both the opportunity to ask questions and receive answers from the officers and directors of the Corporation and all persons acting on its behalf concerning the terms and conditions of the offer made hereunder;
(g) he/she/it is familiar with the proposed business, management, financial condition and affairs of the Corporation;
(h) he/she/it has full power, authority and legal capacity to execute and deliver this letter and any documents contemplated herein or needed to consummate the transactions contemplated in this letter; and
(i) this letter constitutes a legal, valid and binding obligation of such party, and is enforceable against him/her/it.
 
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to its conflict of law principles.  Each of the parties hereto irrevocably consent to and submit to the exclusive personal jurisdiction of the federal and state courts situated in the County of New York in the State of New York and irrevocably waive any objections to the personal jurisdiction of these courts.
This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, will be deemed to be an original, but all of which counterparts, when taken together, will constitute one and the same instrument.
This letter agreement constitutes the entire agreement between the undersigned and the Corporation with respect to the purchase of the Insider Units, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same.
 
Very truly yours,
 
 
 
/s/ James A. Mitarotonda
 
Name: James A. Mitarotonda
 [Signature Page Follows]
 
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
 
BARINGTON/HILCO ACQUISITION CORP.
 
 
By:
 /s/ James A. Mitarotonda
   
Name: James A. Mitarotonda
   
Title: Chief Executive Officer
     
 
KRAMER LEVIN NAFTALIS & FRANKEL LLP
 
(solely with respect to its obligations to hold
 
and disburse monies for the Insider Units)
 
 
By:
 /s/ Christopher S. Auguste
   
Name: Christopher S. Auguste
   
Title: Partner