Exhibit 1.1
15,625,000 Units
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
UNDERWRITING AGREEMENT
October [ ], 2006
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation, a Delaware corporation (the
"Company"), proposes to sell to you (the "Underwriter") an aggregate of
15,625,000 units (the "Firm Units"), with each unit consisting of one share of
the Company's common stock, $0.0001 par value (the "Common Stock") and one
warrant ("Warrant") to purchase Common Stock. The Company also proposes to sell
at the Underwriter's option ("Over-allotment Option") an aggregate of up to
2,343,750 additional units of the Company (the "Option Units") as set forth
below. The terms of the Warrants are provided for in the form of a Warrant
Agreement (as defined herein).
The Firm Units and the Option Units (to the extent the aforementioned
option is exercised) are herein collectively called the "Units", and the Units,
the shares of Common Stock and the Warrants included in the Units and the shares
of Common Stock issuable upon exercise of the Warrants included in the Units are
hereinafter referred to as the "Securities."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Underwriter as follows:
(a) A registration statement on Form S-1 (File No. 333-136048)
with respect to the Securities and the Underwriter's Securities (as defined
below) has been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission.
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Copies of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been delivered by the Company to
you. Such registration statement, together with any registration statement filed
by the Company pursuant to Rule 462(b) under the Act, is herein referred to as
the "Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rules 430A or 430C under the Act and
contained in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement (the "Effective Date"). "Prospectus" means the
form of prospectus first filed with the Commission pursuant to and within the
time limits described in Rule 424(b) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus." Any reference herein to the
Prospectus shall be deemed to include any supplements or amendments thereto
filed with the Commission after the date of filing of the Prospectus under Rule
424(b) under the Act, and prior to the termination of the offering of the Units
and the Underwriter's Securities by the Underwriter. The Company has filed with
the Commission a Form 8-A (File Number 001-[____]) providing for the
registration under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the Securities and the Underwriter's Securities.
(b) As of the Applicable Time (as defined below) and as of the
Closing Date or the Option Closing Date, as the case may be, the Statutory
Prospectus (as defined below) and the information included on Schedule I hereto,
all considered together (collectively, the "General Disclosure Package") did not
and will not include any untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the General Disclosure
Package in reliance upon, and in conformity with, written information furnished
to the Company by the Underwriter specifically for use therein, it being
understood and agreed that the only such information is that described in
Section 12 herein. The Company has not prepared or used and will not prepare or
use a "free writing prospectus" as defined in Rule 405 under the Act, in
connection with the offering of Securities. As used in this subsection and
elsewhere in this Agreement:
"Applicable Time" means ______ [a/p]m (New York time) on the date
of this Agreement or such other time as agreed to by the Company and the
Underwriter.
"Statutory Prospectus" as of any time means the Preliminary
Prospectus relating to the Securities that is included in the Registration
Statement immediately prior to that time.
(c) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement, the General Disclosure
Package and the Prospectus. The Company has no
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subsidiaries, direct or indirect. The Company is duly qualified to transact
business and in good standing in all jurisdictions in which the conduct of its
business requires such qualification.
(d) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable. The shares
of Common Stock included in the Units have been duly authorized and, when issued
and paid for as contemplated herein, will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to
any of such shares or the issue and sale thereof. The shares of Common Stock
included in the Underwriter's Units have been duly authorized and, when issued
and paid for as contemplated in the Underwriter's Purchase Option (as defined
below), will be validly issued, fully paid and non-assessable; and no preemptive
rights of stockholders exist with respect to any of such shares or the issue and
sale thereof. The shares of Common Stock issuable upon exercise of the Warrants,
including the Underwriter's Warrants, have been duly authorized and, when issued
and paid for as contemplated in the Warrants and the Warrant Agreement, will be
validly issued, fully paid and non-assessable; and no preemptive rights of
stockholders exist with respect to any of such shares or the issue and sale
thereof.
(e) The Warrants included in the Units have been duly
authorized and, when executed by the Company, countersigned in the manner
provided for in the Warrant Agreement and delivered and paid for as contemplated
herein, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law). The Underwriter's Warrants have been duly authorized and, when executed by
the Company, countersigned in the manner provided for in the Warrant Agreement
and delivered and paid for as contemplated in the Underwriter's Purchase Option,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(f) The Underwriter's Purchase Option (as defined below) has
been duly authorized and, when executed by the Company and delivered and paid
for as contemplated herein, will constitute the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law)
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(g) Neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement gives rise to
any rights, other than those which have been waived or satisfied, for or
relating to the registration of any securities of the Company. Except as set
forth in the Registration Statement, the General Disclosure Package and the
Prospectus, no holders of any securities of the Company or any rights
exercisable for or convertible or exchangeable into securities of the Company
have the right to require the Company to register any such securities of the
Company under the Act or to include any such securities in a registration
statement to be filed by the Company.
(h) The information set forth under the caption
"Capitalization" in the Registration Statement and the Prospectus (and any
similar section or information contained in the General Disclosure Package) is
true and correct. All of the Securities conform to the descriptions thereof
contained in the Registration Statement, the General Disclosure Package and the
Prospectus. The form of the certificates for the shares of Common Stock conforms
to the General Corporation law of the State of Delaware.
(i) Neither the Commission nor any state regulatory authority
has issued an order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus relating to the proposed offering of the Units, and
no proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or, to the Company's knowledge, threatened by the Commission or any
state regulatory authority. Neither the Commission nor any state regulatory
authority has issued any order preventing or suspending the effectiveness of the
Registration Statement and no proceeding for that purpose or pursuant to
Section 8A of the Act has been instituted or is pending or is contemplated or
threatened by the Commission. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein by, and will conform to, the
requirements of the Act and the Rules and Regulations. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not omit, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by the Underwriter specifically for
use therein, it being understood and agreed that the only such information is
that described in Section 12 herein.
(j) The Company has not, directly or indirectly, distributed
and will not distribute any offering material in connection with the offering
and sale of the Units other than any Preliminary Prospectus, the Prospectus and
other materials, if any, permitted under the Act.
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(k) The financial statements of the Company, together with
related notes and schedules as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus, present fairly the financial
position and the results of operations and cash flows of the Company, at the
indicated dates and for the indicated periods. Such financial statements and
related schedules comply with the applicable accounting requirements of the Act
and the Rules and Regulations and have been prepared in accordance with
generally accepted principles of accounting ("GAAP"), consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary and selected financial and statistical data included in
the Registration Statement, the General Disclosure Package and the Prospectus
present fairly the information shown therein and such data has been compiled on
a basis consistent with the financial statements presented therein and the books
and records of the Company. The Company does not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet
obligations or any "variable interest entities" within the meaning of Financial
Accounting Standards Board Interpretation No. 46), not disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus. There
are no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the General Disclosure Package or the
Prospectus that are not included as required.
(l) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, who have certified certain
financial statements that are filed with the Commission as part of the
Registration Statement, the General Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable Rules and Regulations and the Public
Company Accounting Oversight Board (United States) (the "PCAOB").
(m) Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, the Company is not aware of (i)
any material weakness in its internal control over financial reporting or (ii)
change in internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting.
(n) Solely to the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
as amended, and the rules and regulations promulgated by the Commission and the
American Stock Exchange thereunder (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") has been
applicable to the Company, there is and has been no failure on the part of the
Company to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company has taken all necessary actions to ensure that
it is in compliance with all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are in
effect and with which the Company is required to comply and is actively taking
steps to ensure that it will be in compliance with other provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect or which will become applicable to
the Company.
(o) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or, to the
knowledge of the Company, pending or threatened against any of the Company's
stockholders immediately prior to the offering of
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Units (the "Initial Stockholders"), before any court or administrative agency or
otherwise which if determined adversely to the Company would either (i) have,
individually or in the aggregate, a material adverse effect on the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company or (ii) prevent the
consummation of the transactions contemplated hereby (the occurrence of any such
effect or any such prevention described in the foregoing clauses (i) and (ii)
being referred to as a "Material Adverse Effect"), except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus.
(p) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described or described in the Registration Statement, the General Disclosure
Package and the Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or
described in the Registration Statement, the General Disclosure Package and the
Prospectus or which are not material in amount.
(q) Since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented, there has not been any event
or development in respect of the business or condition of the Company that,
individually or in the aggregate, would have a Material Adverse Effect, whether
or not occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company, other than transactions in the ordinary
course of business and changes and transactions described in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be
amended or supplemented and no member of the Company's management has resigned
from any position with the Company. The Company has no material contingent
obligations which are not disclosed in the Company's financial statements which
are included in the Registration Statement, the General Disclosure Package and
the Prospectus.
Subsequent to the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the
Prospectus, except as otherwise specifically stated therein or in this
Agreement, the Company has not: (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money; or (ii)
declared or paid any dividend or made any other distribution on or in respect to
its capital stock.
(r) The Company is not, nor with the giving of notice or lapse
of time or both, will be, (i) in violation of its certificate of incorporation
or by-laws, (ii) in violation of or in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it, or any of its properties, is bound or (iii) in violation of any
law, order, rule or regulation, judgment, order, writ or decree applicable to
the Company of any court or of any government, regulatory body or administrative
agency or other governmental body having jurisdiction over the Company, its
properties or assets. The execution, delivery and performance of this Agreement,
the Warrant Agreement, the Underwriter's Purchase Option and the Trust
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Agreement (as defined below), and the consummation of the transactions herein
and therein contemplated and the fulfillment of the terms hereof and thereof
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by which the
Company or any of its properties is bound, or of the certificate of
incorporation or by-laws of the Company or any law, order, rule or regulation
judgment, order, writ or decree applicable to the Company of any court or of any
government, regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, its properties or assets.
(s) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement, the Warrant Agreement, the
Underwriter's Purchase Option and the Trust Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the Company. On the
Closing Date, the Warrant Agreement and the Trust Agreement will have been duly
executed and delivered and they will constitute the valid and binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally; (ii) as such enforceability is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and (iii) as enforceability of
any indemnification and contribution provisions may be limited under state or
federal securities laws.
(t) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement, the Warrant Agreement, the Underwriter's Purchase
Option and the Trust Agreement, and the consummation of the transactions herein
and therein contemplated (except such additional steps as may be required by the
Commission, the National Association of Securities Dealers, Inc. (the "NASD") or
such additional steps as may be necessary to qualify the Securities for public
offering by the Underwriter under state securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(u) The Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of its
business.
(v) Neither the Company, nor to the Company's knowledge, any of
its affiliates, has taken or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Securities.
(w) The Company is not and, after giving effect to the offering
and sale of the Units contemplated hereunder and the application of the net
proceeds from such sale as described
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in the Registration Statement, the General Disclosure Package and the
Prospectus, will not be an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "1940 Act"), and the
rules and regulations of the Commission thereunder.
(x) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(y) The statistical, industry-related and market-related data
included in the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data agree with the
sources from which they are derived.
(z) The operations of the Company are and have been conducted
at all times in compliance with applicable financial record-keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, applicable money laundering statutes and applicable rules and
regulations thereunder (collectively, the "Money Laundering Laws"), and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the
Money Laundering Laws is pending or, to the Company's knowledge, threatened.
(aa) Neither the Company nor, to the Company's knowledge, any
director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(bb) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects
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and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(cc) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or 5% or greater securityholders.
(dd) The Units, the Warrants and the Common Stock have been
approved for listing subject to notice of issuance on the American Stock
Exchange.
(ee) There are no relationships or related-party transactions
involving the Company or any other person required to be described in the
Registration Statement, the General Disclosure Package and the Prospectus which
have not been described as required.
(ff) The Company has not made any contribution or other payment
to any official of, or candidate for, any federal, state or foreign office in
violation of any law which violation is required to be disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus.
(gg) To the Company's knowledge, all information contained in
the questionnaires completed by each of the Company's Initial Stockholders and
provided to the Underwriter as an exhibit to his or her Insider Letter (as
defined herein) is true and correct in all material respects and the Company has
not become aware of any information which would cause the information disclosed
in the questionnaires completed by each Initial Stockholder to become inaccurate
and incorrect in any material respect.
(hh) There are no claims, payments, arrangements, agreements or
understandings relating to the payment of a finder's, consulting or origination
fee by the Company or any Initial Stockholder with respect to the sale of the
Securities hereunder or any other arrangements, agreements or understandings of
the Company or, to the Company's knowledge, any Initial Stockholder that may
affect the Underwriter's compensation, as determined by the NASD. The Company
has not made any direct or indirect payments (in cash, securities or otherwise)
to: (i) any person, as a finder's fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing to
the Company persons who raised or provided capital to the Company; (ii) to any
NASD member; or (iii) to any person or entity that has any direct or indirect
affiliation or association with any NASD member, within the twelve months prior
to the Effective Date. None of the net proceeds of the offering will be paid by
the Company to any participating NASD member or its affiliates, except as
specifically authorized herein and except as may be paid in connection with an
initial acquisition, or acquisition of control, by the Company of one or more
assets or operating businesses in the telecommunications and media industries
through a merger, capital stock exchange, asset or stock acquisition or other
similar business combination ("Business Combination") and/or one or more
other transactions after the initial Business Combination, including without
limitation in connection with the payment of investment banking fees, fees in
connection with fairness opinions and the like.
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(ii) The Company has entered into a warrant agreement with
respect to the Warrants, including the Underwriter's Warrants, with Continental
Stock Transfer & Trust Company substantially in the form of Exhibit 4.4 to the
Registration Statement (the "Warrant Agreement"). The Company has entered into
the Trust Agreement with respect to certain proceeds of the offering
substantially in the form of Exhibit 10.8 to the Registration Statement.
(jj) The Company has caused to be duly executed legally binding
and enforceable agreements (except (i) as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally; (ii) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and (iii) as enforceability of
any indemnification and contribution provisions may be limited under state or
federal securities laws) in the form filed as Exhibit 10.13 to the Registration
Statement (the "Insider Letters"), pursuant to which each of the Initial
Stockholders of the Company has agreed to certain matters including, but not
limited to, certain matters described as being agreed to by him under the
"Proposed Business" section of the Registration Statement, the General
Disclosure Package and the Prospectus, including, in the case of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, certain indemnification provisions.
(kk) Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, no Initial Stockholder, employee,
officer or director of the Company is subject to any non-competition or
non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be an Initial Stockholder, employee, officer
and/or director of the Company.
(ll) Upon delivery and payment for the Firm Units on the Closing
Date, the Company will not be subject to Rule 419 under the Act and none of the
Company's outstanding securities will be deemed to be a "▇▇▇▇▇ stock" as defined
in Rule 3a-51-1 under the Exchange Act.
(mm) The Company does not have any specific Business Combination
under consideration or contemplation and the Company has not, nor has anyone on
its behalf, either directly or indirectly, contacted any potential target
business or their representatives or had any discussions, formal or otherwise,
with any of the foregoing with respect to effecting a business combination with
the Company. The Company has not engaged or retained any agent or other
representative to identify or locate any suitable target.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM UNITS.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriter and the Underwriter agrees to
purchase, at a price of $7.60 per Unit (the "Initial Purchase Price") (less
$0.16 per Unit purchased hereunder (the "Deferred Discount") payable to the
Underwriter upon consummation of a Business Combination), the Firm Units.
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(b) Payment for the Firm Units to be sold hereunder is to be
made in Federal (same day) funds against delivery of certificates therefor to
the Underwriter. Such payment and delivery are to be made through the facilities
of The Depository Trust Company ("DTC"), New York, New York at 10:00 a.m., New
York time, on the third business day after the date of this Agreement (or the
fourth business day following the date of this Agreement, if the offering is
priced after 4:30 p.m., New York time) or at such other time and date not later
than five business days thereafter as you and the Company shall agree upon, such
time and date being herein referred to as the "Closing Date." (As used herein,
"business day" means a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.) Payment of $118,750,000,
representing the aggregate purchase price for the Firm Units based on the
Initial Purchase Price, shall be made on the Closing Date by wire transfer in
Federal (same day) funds, as follows: $115,750,000 (including $2,500,000,
representing the aggregate Deferred Discount without giving effect to the
Over-allotment Option) shall be deposited by the Underwriter directly in the
trust account established by the Company for the benefit of the public
securityholders as described in the Registration Statement (the "Trust Account")
pursuant to the terms of an Investment Management Trust Agreement (the "Trust
Agreement"), and the remaining $3,000,000 of the proceeds (representing
$2,450,000 of the proceeds not required to be held in the Trust Fund and
$550,000 of offering expenses), shall be paid to the Company, upon delivery to
you of certificates (in form and substance satisfactory to the Underwriter)
representing the Firm Units (or through the facilities of DTC) for the account
of the Underwriter. The certificates for the Firm Units will be delivered in
such denominations and in such registrations as the Underwriter requests in
writing not later than the second full business day prior to the Closing Date,
and will be made available for inspection by the Underwriter at least one
business day prior to the Closing Date.
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants the Over-allotment Option to the Underwriter to
purchase the Option Units at the price per Unit as set forth in the first
paragraph of this Section 2. The Over-allotment Option granted hereby may be
exercised in whole or in part by giving written notice at any time within 30
days after the date of this Agreement, by you to the Company setting forth the
number of Option Units as to which you are exercising the option and the time
and date at which such certificates are to be delivered. The time and date at
which certificates for Option Units are to be delivered shall be determined by
you but shall not be earlier than three nor later than 10 full business days
after the exercise of such option, nor in any event prior to the Closing Date
(such time and date being herein referred to as the "Option Closing Date"). If
the date of exercise of the option is three or more days before the Closing
Date, the notice of exercise shall set the Closing Date as the Option Closing
Date. The Over-allotment Option granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Units by the Underwriter. The
Underwriter may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if any, that
the option is exercised, payment for the Option Units shall be made on the
Option Closing Date in Federal (same day funds) through the facilities of DTC in
New York, New York drawn to the order of the Company. Payment for the Option
Units shall
11
be made on the Option Closing Date by wire transfer in Federal (same day) funds,
as follows: $7.60 per Option Unit sold (including the Deferred Discount) shall
be deposited in the Trust Fund pursuant to the Trust Agreement upon delivery to
you of certificates (in form and substance satisfactory to the Underwriter)
representing the Option Units sold (or through the facilities of DTC) for the
account of the Underwriter.
The Company hereby agrees to issue and sell to you on the Effective Date
an option (the "Underwriter's Purchase Option") for the purchase of an aggregate
of 781,250 units of the Company (the "Underwriter's Units") for an aggregate
purchase price of $100.00. Each of the Underwriter's Units is identical to the
Firm Units, except that the Warrants included in the Underwriter's Units (the
"Underwriter's Warrants") have an exercise price of $7.50, which is equal to
125% of the exercise price of Warrants included in the Units sold to the public.
The Underwriter's Purchase Option shall be exercisable, in whole or in part,
commencing on the later of the consummation of a Business Combination, and one
year from the Effective Date and expiring on the four-year anniversary of the
Effective Date (or, if earlier, the date on which the Warrants shall have been
redeemed) at an initial exercise price per Underwriter's Unit of $10.00, which
is equal to 125% of the initial public offering price of a Unit. The
Underwriter's Purchase Option, the Underwriter's Units, the Underwriter's
Warrants, the shares of Common Stock included in the Underwriter's Units and the
shares of Common Stock issuable upon exercise of the Underwriter's Warrants are
hereinafter referred to collectively as the "Underwriter's Securities." You
understand and agree that you may not transfer the Underwriter's Securities for
180 days after the Effective Date.
Delivery and payment for the Underwriter's Purchase Option shall be made
on the Closing Date. The Company shall deliver to the Underwriter, upon payment
therefor, certificates for the Underwriter's Purchase Option in the name or
names and in such authorized denominations as the Underwriter may request.
3. OFFERING BY THE UNDERWRITER.
It is understood that the Underwriter is to make a public offering
of the Firm Units as soon as it advisable to do so. The Firm Units are to be
initially offered to the public at the initial public offering price set forth
in the Prospectus. The Underwriter may from time to time thereafter change the
public offering price and other selling terms.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Underwriter that:
(a) The Company will (A) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Underwriter containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rules 430A or
430C of the Rules and Regulations and (B) not file any amendment to the
Registration Statement or distribute an amendment or supplement to the General
Disclosure Package or the Prospectus of which the Underwriter shall not
previously
12
have been advised and furnished with a copy or to which the Underwriter shall
have reasonably objected in writing or which is not in compliance with the Rules
and Regulations.
(b) The Company will not make any offer relating to the
Securities that would constitute a "free writing prospectus" (as defined in Rule
405 under the Act) required to be filed by the Company with the Commission under
Rule 433 under the Act.
(c) The Company will advise the Underwriter promptly (A) when
the Registration Statement or any post-effective amendment thereto shall have
become effective, (B) of receipt of any comments from the Commission, (C) of any
request of the Commission for amendment of the Registration Statement or for
supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, or of the institution of any proceedings for that purpose or
pursuant to Section 8A of the Act. The Company will use its reasonable best
efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(d) The Company will cooperate with the Underwriter in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Underwriter may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the
Underwriter, from time to time, as many copies of any Preliminary Prospectus as
the Underwriter may reasonably request. The Company will deliver to, or upon the
order of, the Underwriter during the period when delivery of a Prospectus (or,
in lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Underwriter may reasonably request.
The Company will deliver to the Underwriter at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriter such number of
copies of the Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Underwriter may reasonably request.
(f) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Units as contemplated in this Agreement and the Prospectus. If during the period
in which a prospectus (or, in lieu thereof, the notice referred to
13
under Rule 173(a) under the Act) is required by law to be delivered by the
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriter, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.
(g) If the General Disclosure Package is being used to solicit
offers to buy the Securities at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriter, it
becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not
misleading, or to make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is necessary at
any time to amend or supplement the General Disclosure Package to comply with
any law, the Company promptly will prepare, file with the Commission (if
required) and furnish to the Underwriter and any dealers an appropriate
amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the Effective Date, an earnings statement (which need not be
audited) in reasonable detail, covering a period of at least 12 consecutive
months beginning after the Effective Date, which earnings statement shall
satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act
and will advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Company will furnish to the
Underwriter, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(j) Except for securities issued in the Private Placement (as
defined below), the Company hereby agrees that until the Company consummates
a Business Combination, it shall not issue any shares of Common Stock or any
options or other securities convertible into Common Stock, or any shares of
preferred stock which participate in any manner in the Trust Fund or which
vote as a class with the Common Stock on a Business Combination.
Notwithstanding the foregoing, if (1) during the last 17 days of the
restricted period, the Company issues an earnings release or material news or
a material event relating to the Company occurs; or (2) prior to the
expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period following the last day of
the restricted period, then in each case the restrictions imposed by this
Agreement
14
shall continue to apply until the expiration of the 18-day period beginning on
the date of the release of the earnings results or the occurrence of material
news or a material event relating to the Company, as the case may be, unless the
Underwriter waives, in writing, such extension.
(k) The Company will use its best efforts to effect and
maintain the listing of the Securities and Underwriter's Securities on the
American Stock Exchange ("AMEX").
(l) The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Registration Statement, General Disclosure
Package and the Prospectus and shall file such reports with the Commission with
respect to the sale of the Securities and the application of the proceeds
therefrom as may be required in accordance with Rule 463 under the Act.
(m) The Company will maintain a transfer agent, warrant agent
and, if necessary under the jurisdiction of incorporation of the Company, a
registrar for the Units, Common Stock and Warrants, as applicable.
(n) The Company will not take, directly or indirectly, any
action that constitutes or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company.
(o) For a period of four years from the Effective Date, or such
earlier time upon which the Company is required to be liquidated, the Company
will use its reasonable best efforts to maintain the registration of the
Securities and the Underwriter's Securities under the provisions of the Exchange
Act. For a period of four years from the Effective Date, or such earlier time
upon which the Company is required to be liquidated or the Underwriter shall no
longer hold the Underwriter's Purchase Option, the Company will not deregister
the Units under the Exchange Act without the prior written consent of the
Underwriter.
(p) For a period of four years from the Effective Date, or
until such earlier date upon which the Company is required to be liquidated, the
Company, at its expense, shall cause its regularly engaged independent
registered public accounting firm to review (but not audit) the Company's
financial statements for each of the first three fiscal quarters prior to the
announcement of quarterly financial information and the filing of the Company's
Form 10-Q quarterly report.
(q) The Company shall not consummate a Business Combination
with any Initial Stockholder, or officer or director of the Company, or any
entity which is affiliated with any Initial Stockholder or officer or director
of the Company without first obtaining an opinion from an independent investment
banking firm that such Business Combination is fair to the Company's
stockholders from a financial point of view.
Except as described in the Registration Statement, General
Disclosure Package and the Prospectus, and other than payment pursuant to the
administrative services agreement, dated July 24, 2006, between the Company and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital, LLC, pursuant to
15
which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital, LLC will make available to the Company certain
office space and certain office and general and administrative services, the
Company shall not pay any Initial Stockholder or any of their affiliates or
family members any fees or compensation from the Company, for services rendered
to the Company prior to, or in connection with, the consummation of an initial
Business Combination; provided that the Initial Stockholders shall be entitled
to reimbursement from the Company, subject to approval by the Board of Directors
of the Company, for their reasonable out-of-pocket expenses incurred in
connection with seeking and consummating an initial Business Combination.
(r) The Company will take all necessary actions to ensure that,
upon and at all times after the effectiveness of the Registration Statement, it
will be in compliance with (i) all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are
then in effect and applicable to it and shall take such steps as are necessary
to ensure that it will be in compliance with other provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the effectiveness of such
provisions to the extent they are applicable to the Company and (ii) the
requirements of the American Stock Exchange's AMEX Company Guide.
(s) For a period of four years from the Effective Date or until
such earlier time upon which the Company is required to be liquidated, the
Company, upon request from the Underwriter, will furnish to the Underwriter
(Attn: Syndicate Manager with a copy to: General Counsel), copies of such
financial statements and other periodic and special reports as the Company from
time to time furnishes generally to holders of any class of securities, and
promptly furnish to the Underwriter: (i) a copy of such registration statements,
financial statements and periodic and special reports as the Company shall be
required to file with the Commission and from time to time furnishes generally
to holders of any such class of its securities; and (ii) such additional
documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Underwriter may from time to time
reasonably request, all subject to the execution of a confidentiality agreement
reasonably satisfactory to the Company.
(t) For a period equal to four years from the date hereof or
until such earlier time upon which the Company is required to be liquidated, the
Company will not take any action or actions which may prevent or disqualify the
Company's use of Form S-1 (or other appropriate form) for the registration of
the Underwriter's Units, the Warrants, including the Underwriter's Warrants, and
the Common Stock issuable upon exercise of the Warrants, under the Act.
(u) In the event any person or entity (excluding attorneys,
accountants, engineers, environmental or labor consultants, investigatory firms,
technology consultants and specialists and similar service providers that are
not affiliated or associated with the NASD and are not brokers or finders) is
engaged, in writing, to assist the issuer in finding or evaluating a merger
candidate, the Company will provide the following to the NASD and the
Underwriter prior to consummation of an initial Business Combination: (i) copies
of agreements governing said services (which details or agreements may be
appropriately redacted to account for privilege or confidentiality concerns),
and (ii) a justification as to why the person or entity providing the
16
merger and acquisition services should not be considered an "underwriter or
related person" with respect to the Company's initial public offering as such
term is defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also
agrees that proper disclosure of such arrangement or potential arrangement will
be made in the proxy statement which the Company will file for purposes of
soliciting stockholder approval for the initial Business Combination.
(v) The Company will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that: (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary in order to permit preparation of
financial statements in accordance with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The Company shall, on the date hereof, retain its
independent public accountants to audit the financial statements of the Company
as of the Closing Date (the "Audited Financial Statements") reflecting the
receipt by the Company of the proceeds of the initial public offering. As soon
as the Audited Financial Statements become available, the Company shall promptly
file a Current Report on Form 8-K with the Commission, which Report shall
contain the Company's Audited Financial Statements. In addition, upon receipt of
the proceeds from the sale of any Option Units after the Closing Date, the
Company shall promptly file a second or amended Current Report on Form 8-K with
the Commission, which Report shall provide updated financial information to
reflect the receipt of such additional proceeds.
Upon the earlier to occur of (i) the expiration or termination of
the Over-allotment Option and (ii) the exercise in full of the Over-allotment
Option, the Company shall, subject to having filed the Current Report(s) on
Form 8-K pursuant to the previous paragraph, promptly issue a press release
announcing that separate trading of the Warrants and Common Stock will begin on
the AMEX.
(x) The Company shall advise the NASD if it is aware that any
5% or greater securityholder of the Company (other than the Underwriter or its
affiliates) becomes an affiliate or associated person of an NASD member
participating in the distribution of the Securities.
(y) The Company shall, as set forth in the Trust Agreement and
disclosed in the Prospectus, cause the proceeds of the offering to be held in
the Trust Fund to be invested only in "government securities" within the meaning
of Section 2(a)(16) of the 1940 Act with a maturity of 180 days or less, or in
money market funds meeting certain conditions under Rule 2a-7 promulgated under
the 1940 Act with specific maturity dates. The Company will otherwise use its
best efforts to conduct its business (both prior to and after the consummation
of an initial Business Combination) in a manner so that it will not become
subject to the 1940 Act.
(z) The Company hereby agrees that prior to commencing its due
diligence investigation of any assets or operating business which the Company
seeks to acquire ("Target
17
Business") or obtaining the services of any vendor or service provider or other
entity it will use its reasonable best efforts to attempt to cause the Target
Business or the vendor or service provider or other entity with which the
Company executes an agreement to execute a waiver letter in the form attached
hereto as Exhibit A and B, respectively. It is understood that the Company may
not be able to obtain such letters in some or all circumstances and that,
nonetheless, the Company may still proceed with such due diligence
investigations and enter into agreements with such parties or obtaining of
services, as applicable. Furthermore, prior to commencing such due diligence
investigation, each officer and director of the Company (other than the Initial
Stockholders) shall execute a waiver letter in the form attached hereto as
Exhibit C.
(aa) The Company shall not take any action or omit to take any
action that would cause the Company to be in breach or violation of its
certificate of incorporation or by-laws and, the Company shall not take any
action to amend or modify the provisions of its certificate of incorporation
that apply to the Company during the period commencing upon the filing of the
certificate of incorporation with the Delaware Secretary of State and
terminating upon the consummation of a Business Combination, which action would
result in such amendment or modification becoming effective prior to an initial
Business Combination.
(bb) The Company agrees: (i) that, prior to the consummation of
any Business Combination, it will submit such transaction to the Company's
stockholders for their approval ("Initial Transaction Vote") even if the
nature of the acquisition is such as would not ordinarily require stockholder
approval under applicable state law; and (ii) that, in the event that the
Company does not effect a Business Combination within 18 months from the
consummation of this offering (subject to extension for an additional
six-month period, as described in the Prospectus), the Company will be
liquidated as described in the Prospectus. With respect to the Initial
Transaction Vote, the Company shall use its reasonable best efforts to cause
all of the Initial Stockholders to vote all shares of Common Stock owned by
them and acquired prior to this offering (the "Initial Shares"), in
accordance with the vote of the majority of the IPO Shares (as hereinafter
defined) voted (in person or by proxy), at a meeting of the Company's
stockholders called for the Initial Transaction Vote. At the time the Company
seeks approval of any potential initial Business Combination, the Company
will offer each of the holders of the Company's Common Stock issued in this
offering (the "IPO Shares"), which holders were holders on the record date
for determination of stockholders entitled to vote, the right to convert such
holder's IPO Shares at a per share price (the "Conversion Price") equal to
the amount in the Trust Fund (inclusive of any interest income therein, net
of income taxes, and excluding the Deferred Discount) as of two business days
prior to the consummation of the Business Combination divided by the total
number of IPO Shares (including any shares held by the Initial Stockholders).
If the Company elects to proceed with a Business Combination, it will
promptly after the consummation of such Business Combination convert shares,
based upon the Conversion Price, from those holders of IPO Shares who
affirmatively requested such conversion and who voted against the initial
Business Combination; provided that such holders continue to hold such IPO
Shares through consummation of the
18
Business Combination. If a majority of the IPO Shares that are voted are not
voted in favor of any initial Business Combination or holders of 20% or more
of the IPO Shares vote against approval of any potential initial Business
Combination and exercise their conversion rights, the Company will not
proceed with such initial Business Combination and will not convert such
shares.
(cc) The Company agrees that it will use its best efforts to
prevent the Company from becoming subject to Rule 419 under the Act prior to the
consummation of any Business Combination, including, but not limited to, using
its best efforts to prevent any of the Company's outstanding securities from
being deemed to be a "▇▇▇▇▇ stock" as defined in Rule 3a-51-1 under the Exchange
Act during such period.
(dd) The Company agrees that the initial Target Business(es)
that it acquires must have an aggregate fair market value equal to at least 80%
of the Company's net assets (including the funds held in the Trust Fund other
than the portion representing the Deferred Discount) at the time of such
acquisition. The fair market value of such business(es) must be determined by
the Board of Directors of the Company based upon standards the Board believes
are generally accepted by the financial community. If the Board of Directors of
the Company is not able to independently determine that the Target Business(es)
have an aggregate fair market value equal to at least 80% of the Company's net
assets (excluding the Deferred Discount) at the time of such acquisition, the
Company will obtain an opinion from an unaffiliated, independent third party
appraiser, which may or may not be an investment banking firm which is a member
of the NASD, with respect to the satisfaction of such criteria. The Company is
not required to obtain an opinion from a third party as to the fair market value
if the Company's Board of Directors independently determines that the Target
Business(es) have sufficient fair market value.
(ee) The Company shall deposit into the Trust Fund the
$4,000,000 of proceeds from the private placement ("Private Placement") of
4,000,000 Warrants to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to be completed on or prior to the
Closing Date.
(ff) Within five days of the earlier to occur of the expiration
or termination of the Over-allotment Option, the Company shall purchase
shares of Common Stock from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at a price of $0.000445 per
share, in an amount (up to 585,938 shares of Common Stock) sufficient to
cause the Initial Stockholders to maintain control over Initial Shares in an
amount equal to 20% of the Company's outstanding Common Stock after giving
effect to the offering of the Units and the exercise, if any, of the
Over-allotment Option. If the Underwriter exercises the Over-allotment Option
in full, the Company shall not be required to purchase any shares of Common
Stock pursuant to this subsection.
(gg) Upon consummation of the initial Business Combination, the
Company shall pay to the Underwriter, the Deferred Discount.
19
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriter copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, this Agreement
and the Listing Application; the filing fees of the Commission; the filing fees
and expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Units; and the
Listing Fee of the American Stock Exchange. The Company shall not, however, be
required to pay for any of the Underwriter's expenses except that, if this
Agreement shall not be consummated because the conditions in Section 6 hereof
are not satisfied, or because this Agreement is terminated by the Underwriter
pursuant to Section 10(a)(i) hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or satisfy any
condition of this Agreement or to comply with any of the terms hereof on its
part to be performed, unless such failure, refusal or inability is due primarily
to the default or omission of the Underwriter, the Company shall reimburse the
Underwriter for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Units or in contemplation of performing
its obligations hereunder; but the Company shall not in any event be liable to
the Underwriter for damages on account of loss of anticipated profits from the
sale by it of the Units.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER.
The obligation of the Underwriter to purchase the Firm Units on
the Closing Date and the Option Units, if any, on the Option Closing Date is
subject to the accuracy, as of the Applicable Time, the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and the Prospectus shall have
been filed as required by Rule 424 under the Act, within the time period
prescribed by, and in compliance with, the Rules and Regulations, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Underwriter and complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose or pursuant
to Section 8A under the Act shall have been taken or, to the knowledge of the
Company, shall be contemplated or threatened by the Commission and no
injunction, restraining order or order of any nature by a Federal or state court
of competent jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance of the Units.
20
(b) The Underwriter shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LLP, counsel for the Company, dated the Closing Date or the Option Closing Date,
as the case may be, addressed to the Underwriter (and stating that it may be
relied upon by counsel to the Underwriter) in the form agreed upon by the
Underwriter.
In rendering such opinion ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP may rely as to
matters governed by the laws of states other than New York or Federal laws on
local counsel in such jurisdictions, provided that in each case ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP shall state that they believe that they and the Underwriter are
justified in relying on such other counsel. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that no facts
have come to the attention of such counsel that caused them to believe that (i)
the Registration Statement, at the time it became effective under the Act
(including the information deemed to be a part of the Registration Statement at
the time it became effective pursuant to Rules 430A or 430C under the Act),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) the General Disclosure Package, as of the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii) the
Prospectus, or any supplement thereto, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and schedules and other
financial data therein).
(c) The Underwriter shall have received on and as of the
Closing Date or the Option Closing Date, as the case may be, an opinion and
statement of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, with respect
to such matters as the Underwriter may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(d) You shall have received, on each of the date hereof, the
Closing Date and, if applicable, the Option Closing Date, a letter dated the
date hereof, the Closing Date or the Option Closing Date, as the case may be, in
form and substance satisfactory to you, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP confirming
that they are an independent registered public accounting firm with respect to
the Company within the meaning of the Act and the applicable Rules and
Regulations and the PCAOB and stating that in their opinion the financial
statements and schedules examined by them and included in the Registration
Statement, the General Disclosure Package and the Prospectus comply in form in
all material respects with the applicable accounting requirements of the Act and
the related Rules and Regulations; and containing such other statements and
information as are ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial and
statistical
21
information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(e) The Underwriter shall have received on the Closing Date
and, if applicable, the Option Closing Date, as the case may be, a certificate
or certificates of the Chief Executive Officer and the Chief Financial Officer
of the Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement and no order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus has been issued, and no
proceedings for such purpose or pursuant to Section 8A of the Act have
been taken or are, to his or her knowledge, contemplated or threatened by
the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date
or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to
Rules 424, 430A, 430B or 430C under the Act have been made as and when
required by such rules;
(iv) He or she has carefully examined the General
Disclosure Package and, in his or her opinion, as of the Applicable Time,
the statements contained in the General Disclosure Package did not
contain any untrue statement of a material fact, and such General
Disclosure Package did not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(v) He or she has carefully examined the Registration
Statement and, in his or her opinion, as of the effective date of the
Registration Statement, the Registration Statement and any amendments
thereto did not contain any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and
since the effective date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such
supplement or amendment;
(vi) He or she has carefully examined the Prospectus and,
in his or her opinion, as of its date and the Closing Date or the Option
Closing Date, as the case may be, the Prospectus and any amendments and
supplements thereto did not contain any untrue statement of a material
fact and did not omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; and
22
(vii) Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and
the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or
affecting the business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the
Company, whether or not arising in the ordinary course of business.
(f) The Company shall have furnished to the Underwriter such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters as the
Underwriter may reasonably have requested.
(g) The Firm Units and Option Units, if any, have been duly
listed, subject to notice of issuance, on the American Stock Exchange.
(h) The Company shall have delivered to the Underwriter
executed copies of the Trust Agreement, the Warrant Agreement, and each of the
Insider Letters.
(i) On the Closing Date, the Company shall have delivered to
the Underwriter executed copies of the Underwriter's Purchase Option.
(j) The NASD has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Underwriter and to Debevoise &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriter hereunder may be terminated
by the Underwriter by notifying the Company of such termination in writing at or
prior to the Closing Date or the Option Closing Date, as the case may be.
In such event, the Company and the Underwriter shall not be under
any obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of
the Securities and the Underwriter's Securities required to be delivered as and
when specified in this Agreement are subject to the conditions that at the
Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
23
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Underwriter or any
such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; provided, however,
that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and agreed
that the only such information furnished by the Underwriter consists of
the information described as such in Section 12 herein; and
(2) to reimburse the Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses
reasonably incurred by the Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage
or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Securities, whether
or not the Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that
the Underwriter was not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriter will promptly
return all sums that had been advanced pursuant hereto.
(b) The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
24
circumstances under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that the
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of the
information described as such in Section 12 herein. This indemnity agreement
will be in addition to any liability which the Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
acceptable to the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm for all such indemnified parties. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to
Section 8(a) or (b) and by the Company in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the
25
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriter on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriter agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Securities purchased by the Underwriter and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
26
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or any person controlling
the Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Units and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to the
Underwriter, or any person controlling the Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriter, to Deutsche Bank Securities
Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Syndicate
Manager, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the Company to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Acquisition Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer.
10. TERMINATION.
This Agreement may be terminated by you by notice to the Company
(a) at any time prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to Option Units) if any of
the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company, whether or not arising
in the ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or material change in economic or political
conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or material change on the financial markets
27
of the United States would, in your judgment, make it impracticable or
inadvisable to market the Units or to enforce contracts for the sale of the
Units, (iii) suspension of trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on any such Exchange, (iv) the enactment, publication,
decree or other promulgation of any statute, regulation, rule or order of any
court or other governmental authority which in your reasonable opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Company, (v) the declaration of a banking
moratorium by United States or New York State authorities, (vi) the suspension
of trading of the Company's securities by the American Stock Exchange, the
Commission, or any other governmental authority or (vii) the taking of any
action by any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(b) as provided in Section 6 of this Agreement.
11. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriter and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Units from the Underwriter
shall be deemed a successor or assign merely because of such purchase.
12. INFORMATION PROVIDED BY UNDERWRITER.
The Company and the Underwriter acknowledge and agree that the
only information furnished or to be furnished by the Underwriter to the Company
for inclusion in the Registration Statement, any Preliminary Prospectus, or the
Prospectus consists of the information set forth in the third, thirteenth and
fourteenth paragraphs under the caption "Underwriting" in the Prospectus.
13. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of the
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
The Company acknowledges and agrees that the Underwriter in
providing investment banking services to the Company in connection with the
offering of Securities, including in acting pursuant to the terms of this
Agreement, has acted and is acting as an independent contractor and not as a
fiduciary and the Company does not intend the Underwriter
28
to act in any capacity other than as an independent contractor, including as a
fiduciary or in any other position of higher trust.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York, including, without limitation, Section
5-1401 of the New York General Obligations Law.
If the foregoing letter is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ACQUISITION CORPORATION
By
----------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By
------------------------------------
Authorized Officer
By
------------------------------------
Authorized Officer
29
SCHEDULE I
[PRICE AND OTHER TERMS OF THE OFFERING CONVEYED ORALLY]
30
EXHIBIT A
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated ___, 2006 (the "Prospectus"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We have read the Prospectus and understand that GMAC has established the
Trust Fund, initially in an amount of $___for the benefit of the Public
Stockholders and that GMAC may disburse monies from the Trust Fund only (i) to
the Public Stockholders in the event of the redemption of their shares or the
liquidation of GMAC or (ii) to GMAC after it consummates an initial Business
Combination.
For and in consideration of GMAC agreeing to evaluate the undersigned for
purposes of consummating an initial Business Combination with it, the
undersigned hereby agrees that it does not have any right, title, interest or
claim of any kind in or to any monies in the Trust Fund (the "Claim") and hereby
waives any Claim it may have in the future as a result of, or arising out of,
any negotiations, contracts or agreements with GMAC and will not seek recourse
against the Trust Fund for any reason whatsoever.
-----------------------------------------
Print Name of Target Business
-----------------------------------------
Authorized Signature of Target Business
31
EXHIBIT B
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated ___, 2006 (the "Prospectus"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We have read the Prospectus and understand that GMAC has established the
Trust Fund, initially in an amount of $___for the benefit of the Public
Stockholders and that GMAC may disburse monies from the Trust Fund only: (i) to
the Public Stockholders in the event of the redemption of their shares or the
liquidation of GMAC; or (ii) to GMAC after it consummates an initial Business
Combination.
For and in consideration of GMAC engaging the services of the
undersigned, the undersigned hereby agrees that it does not have any right,
title, interest or claim of any kind in or to any monies in the Trust Fund (the
"Claim") and hereby waives any Claim it may have in the future as a result of,
or arising out of, any negotiations, contracts or agreements with GMAC and will
not seek recourse against the Trust Fund for any reason whatsoever.
-----------------------------------------
Print Name of Vendor
-----------------------------------------
Authorized Signature of Vendor
32
EXHIBIT C
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated ___, 2006 (the "Prospectus"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
The undersigned officer or director of GMAC hereby acknowledges that GMAC
has established the Trust Fund, initially in an amount of $______ for the
benefit of the Public Stockholders in accordance with and subject to the terms
of this letter.
The undersigned 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 to or against the Trust Fund and will not seek recourse against the
Trust Fund for any reason whatsoever except to the extent the undersigned is
entitled to be indemnified by the Company pursuant to the Company's Certificate
of Incorporation, as amended to the date hereof.
Notwithstanding the foregoing, such waiver shall not apply to any shares
acquired by the undersigned in the public market.
-----------------------------------------
Print Name of Officer/Director
-----------------------------------------
Authorized Signature of Officer/Director
33
