UNDERWRITING AGREEMENT between SELWAY CAPITAL ACQUISITION CORPORATION and AEGIS CAPITAL CORP. as Representative
between
SELWAY CAPITAL ACQUISITION CORPORATION
and
AEGIS CAPITAL CORP.
as Representative
SELWAY CAPITAL ACQUISITION CORPORATION
as Representative of the Underwriters
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, Selway Capital Acquisition Corporation, a corporation formed under the laws of Delaware ("you" (including its correlatives) or the “Company”), hereby confirms its agreement with Aegis Capital Corp. (hereinafter referred to as the “Representative”) and with the other underwriters named on Schedule 1 hereto for which the Representative is acting as representative (the Representative and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”) as follows:
(ii) The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Units set forth opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price (net of discounts and commissions) of $9.75 per Firm Unit. The Underwriters, severally and not jointly, agree that they will not seek payment of the Deferred Compensation (as defined below) unless and until an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the case may be, has been consummated by the Company, and the Company agrees that it shall pay the Deferred Compensation only upon consummation of such Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the case may be. The Firm Units are to be offered initially to the public (the “Offering”) at the offering price of $10.00 per Firm Unit. Each Firm Unit consists of one Series A Share (“Series A Shares” including any security issued upon conversion or consolidation of the Series A Shares in accordance with the Amended and Restated Certificate of Incorporation of the Company) of the Company’s common stock, $0.0001 par value, (“Common Stock”) and one warrant (“Warrants”), all as further described in the Registration Statement. The Series A Shares and the Warrants included in the Firm Units will not be separately transferable until the ninetieth (90) day after the Effective Date (as hereinafter defined) unless the Representative notifies the Company of its decision to allow for earlier trading, but in no event will the Representative allow separate trading until the preparation of an audited balance sheet of the Company reflecting receipt by the Company of the proceeds of the Offering, the filing of a Form 8-K by the Company which includes such balance sheet and the Company issuing a press release announcing when such separate trading will begin. Each Warrant entitles its holder to exercise it to purchase one Series A Share for $7.50 during the period commencing on the later of: (i) the consolidation of each series of the Common Stock into one class of Common Stock after consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the case may be, or (ii) one year from the effective date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.1 hereof), and terminating on the earlier of: five-year anniversary of the Effective Date or the date of our dissolution and the liquidation of the trust account, unless such Warrant is earlier redeemed at the option of the Company in accordance with the terms of the Warrant Agreement (as defined in Section 2.20 hereof) (the date of any such redemption. shall be referred to herein as the “Redemption Date”). “Acquisition Transaction” shall mean any merger, stock exchange, asset acquisition, stock purchase or similar acquisition transaction consummated by the Company with an operating target business (as described more fully in the Registration Statement). “Post-Acquisition Tender Offer” shall mean an issuer tender offer commenced by the Company following an Acquisition Transaction in accordance with the Amended and Restated Certificate of Incorporation of the Company (as described more fully in the Registration Statement). “Post-Acquisition Automatic Trust Liquidation” shall mean that the issuer, after the consummation of an Acquisition Transaction, shall cause the shares of Series B Common Stock to be redeemed in accordance with the Amended and Restated Certificate of Incorporation of the Company (as described more fully in the Registration Statement).
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(i) Delivery and payment for the Firm Units shall be made at 10:00 a.m., Eastern time, on the third (3rd) Business Day following the effective date (the “Effective Date”) of the Registration Statement (as defined in Section 2.1.2 below) (or the fourth (4th) Business Day following the Effective Date, if the Registration Statement is declared effective after 4:30 p.m.) or at such earlier time as shall be agreed upon by the Representative and the Company, at the offices of Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxxx & Worcester, LLP, counsel to the Underwriters (“ZAG/S&W”) in New York City, or at such other place (or remotely by fax or other electronic transmission) as shall be agreed by the Representative and the Company. The time and date of delivery and payment for the Firm Units is called the “Closing Date.”
(ii) Payment for the Firm Units shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable as follows: $20,600,000 of the proceeds received for the Firm Units (including $1,750,000 received with respect to the Placement Warrants (as defined below) and including $400,000 in respect of the Deferred Compensation) shall be deposited in the trust fund established by the Company for the benefit of its public shareholders as described in the Registration Statement (“Trust Fund”) pursuant to the terms of an Investment Management Trust Agreement (“Trust Agreement”), and the balance of such proceeds shall be paid to the order of the Company upon delivery to the Representative of certificates (in form and substance satisfactory to the Underwriters) representing the Firm Units (or through the facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Units shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two full Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver any of the Firm Units except upon tender of payment by the Representative for all the Firm Units. The term “Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York City.
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1.2.2. Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Units within 45 days after the Effective Date. The Underwriters will not be under any obligation to purchase any Option Units prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company by the Representative, which must be confirmed in writing by overnight mail or facsimile or other electronic transmission setting forth the number of Option Units to be purchased and the date and time for delivery of and payment for the Option Units (the “Option Closing Date”), which will not be later than five (5) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of ZAG/S&W in New York City or at such other place (including remotely by fax or other electronic transmission) as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Units does not occur on the Closing Date, the Option Closing Date will be as set forth in the notice. Upon exercise of the Over-allotment Option, the Company will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option Units specified in such notice.
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1.5 Deferred Compensation. Upon the consummation of an Acquisition Transaction, or, if later, the completion of a Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the case may be, the Company shall pay the underwriting discounts and commissions (the “Deferred Compensation”) equal to 2.0% of the gross proceeds of the Offering (less any amounts that have been paid prior thereto to investors pursuant to any redemption, cash conversion right, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation). This payment shall be made by wire transfer to an account or accounts designated by the Representative on the closing date of the Acquisition Transaction, or, if later, the completion of a Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation, as the case may be.
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2.1.2. Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 000-54527) providing for the registration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Units, the Series A Shares and the Warrants. The registration of the Units, Series A Shares and Warrants under the Exchange Act has been declared effective by the Commission on the date hereof.
2.2 No Stop Orders, etc. Neither the Commission nor, to the best of the Company’s knowledge, any state regulatory authority has issued any order or threatened to issue any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the Registration Statement or has instituted or, to the best of the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
2.3.1. 10b-5 Representation. At the respective times the Registration Statement and any post-effective amendments thereto become effective (and at the Closing Date and the Option Closing Date, if any):
(i) The Registration Statement, the Prospectus and any post-effective amendments thereto did and will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and did and will in all material respects conform to the requirements of the Act and the Regulations.
(ii) Neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, on such dates, contains or will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement for the registration of the Securities or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus and any amendments thereof and supplements thereto complied or will have been corrected in the Prospectus to comply with the applicable provisions of the Act and the Regulations and did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representation and warranty made in this Section 2.3.1(ii) does not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement or Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter consists solely of the names of the several Underwriters and the information with respect to dealers’ concessions and reallowances in the section of the Prospectus entitled “Underwriting” and the identity of counsel to the Underwriters contained in the section of the Prospectus entitled “Legal Matters” (the “Underwriter Information”).
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2.3.2. Disclosure of Agreements. The agreements and documents described in the Prospectus and the Registration Statement conform to the descriptions thereof contained therein and there are no agreements or other documents required by the Act and the Regulations to be described in the Prospectus, the Registration Statement or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Prospectus, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the best of the Company’s knowledge, any other party is in breach of default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a breach or default thereunder. To the best of the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.3.3. Prior Securities Transactions. Except as disclosed in the Registration Statement, no securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company since its formation.
2.3.4. Regulations. The disclosures in the Registration Statement concerning the effects of Federal, State, local and all foreign regulation on the Company’s business as currently contemplated are, to the best of the Company’s knowledge, correct in all material respects and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
2.4.1. No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company; (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; (iii) no member of the Company’s board of directors or management has resigned or threatened to resign from any position with the Company and (iv) no event or occurrence has taken place which materially impairs, or would likely materially impair, with the passage of time, the ability of the members of the Company’s board of directors or management to act in their capacities with the Company as described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
2.5 Independent Accountants. McGladrey & Xxxxxx, LLP (“McGladrey”), whose report is filed with the Commission as part of the Registration Statement, are independent registered public accountants as required by the Act and the Regulations. McGladrey has not, during the periods covered by the financial statements included in the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
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2.6 Financial Statements, etc. The financial statements, including the notes thereto included in the Registration Statement and Prospectus fairly present the financial position, the results of operations and the cash flows of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved. The Registration Statement discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement and the Prospectus, (a) the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been any change in the capital stock of the Company and, (d) there has not been any material increase in the Company’s long-term or short-term debt. There are no pro forma or as adjusted financial statements which are required to be included in the Sale Preliminary Prospectus and the Prospectus in accordance with Regulation S-X which have not been included as so required.
2.7 Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Prospectus, the duly authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus. Based on the assumptions stated in the Registration Statement and the Prospectus, the Company will have on the Closing Date the adjusted stock capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement and the Prospectus, on the Effective Date and on the Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued shares of Common Stock of the Company or any security convertible into Common Stock of the Company, or any contracts or commitments to issue or sell Common Stock or any such options, warrants, rights or convertible securities.
2.8.2. Securities Sold Pursuant to this Agreement. The Securities have been duly authorized for issuance and sale and, when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly taken. The Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement. When paid for and issued, the Representative’s Purchase Option, the Representative’s Warrants, and the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment of the respective exercise prices therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof and such Representative’s Purchase Option, the Representative’s Warrants, and Warrants are enforceable against the Company in accordance with their respective terms, except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. The shares of Common Stock issuable upon exercise of the Warrants and the Representative’s Warrants have been reserved for issuance upon the exercise of the Warrants and the Representative’s Warrants and, when issued in accordance with the terms of the Warrants and the Representative’s Warrants, as the case may be, will be duly and validly authorized, validly issued, fully paid and non-assessable, and the holders thereof are not and will not be subject to personal liability by reason of being such holders. The underlying shares of Common Stock are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Representative’s Purchase Option, the Warrants and the Representative’s Warrants has been duly and validly taken.
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2.8.3. Placement Warrants. The Placement Warrants constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment of the respective exercise prices therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof, and such Placement Warrants are enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. The shares of Common Stock issuable upon exercise of the Placement Warrants have been reserved for issuance upon the exercise of the Placement Warrants and, when issued in accordance with the terms of the Placement Warrants, will be duly and validly authorized, validly issued, fully paid and non-assessable, and the holders thereof are not and will not be subject to personal liability by reason of being such holders. The Company has received full payment for the Placement Warrants.
2.8.4. No Integration. Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities which are required to be “integrated” pursuant to the Act or the Regulations with the offer and sale of the Securities pursuant to the Registration Statement.
2.9 Registration Rights of Third Parties. Except as set forth in the Registration Statement 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.
2.10 Validity and Binding Effect of Agreements. This Agreement, the Representative’s Purchase Option, the Warrant Agreement (as defined in Section 2.20 hereof), the Trust Agreement, the Services Agreement (as defined in Section 3.17.2 hereof) and the Placement Warrant Purchase Agreement (as defined in Section 2.21.2 hereof, all of the foregoing being referred to herein as the “Applicable Agreements”) have been duly and validly authorized by the Company, and, when executed and delivered, 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, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought.
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2.13.2. Transactions Contemplated Herein. The Company has all requisite corporate power and authority to enter into the Applicable Agreements and to carry out the provisions and conditions hereof and thereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery of the Securities and the consummation of the transactions and agreements contemplated by the Applicable Agreements and as contemplated by the Prospectus, except with respect to applicable federal and state securities laws and the rules and regulations of FINRA.
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2.17.5. Additional FINRA Representations. Neither the Sponsor, nor officers, directors or 5% or greater shareholders (directly or indirectly) of the Company is an owner of common stock or other securities of any member of FINRA (other than securities purchased on the open market). Neither the Sponsor, nor officers, directors or 5% or greater shareholders (directly or indirectly) of the Company has made a subordinated loan to any member of FINRA. No proceeds from the sale of the Securities or the Placement Securities will be paid to any FINRA member, or any persons associated or affiliated with a member of FINRA. The Company has not entered into any agreement or arrangement (including, without limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date of the Registration Statement, which arrangement or agreement provides for the receipt of any item of value and/or the transfer of any warrants, options, or other securities from the Company to a FINRA member, any person associated with a member (as defined by FINRA rules), any potential underwriters in the Offering and/or any related persons, other than the arrangements the Company has entered into with the Representative in connection with the Offering.
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2.20 Warrant Agreement. The Company has entered into a warrant agreement with respect to the Warrants, the Placement Warrants and the Representative’s Warrants with American Stock Transfer & Trust Company substantially in the form filed as an exhibit to the Registration Statement (“Warrant Agreement”).
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2.22 Investment Management Trust Agreement. The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering substantially in the form annexed as Exhibit 10.2 to the Registration Statement.
2.29 Taxes The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as disclosed in writing to the Underwriters, (i) no issues have been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company. The term “taxes” mean all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
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Covenants of the Company. The Company covenants and agrees as follows:
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3.8 Payment of Expenses. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the Units to be sold in the Offering (including the Over-allotment Units) with the Commission; (b) all COBRA Desk filing fees associated with the review of the Offering by FINRA; (c) all fees and expenses relating to the listing or qualification for trading on the securities exchange or trading system as the Company and the Underwriter together determine; (d) all fees, expenses and disbursements relating to background checks of the Company’s officers and directors in an amount not to exceed $9,000 in the aggregate; (e) all fees, expenses and disbursements relating to the registration or qualification of the Units under the “blue sky” securities laws of such states and other jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration fees, and reasonable fees and disbursements of “blue sky” counsel, it being agreed that such fees and expenses will be limited to: a payment of $15,000 to such counsel upon the commencement of “blue sky” work by such counsel and an additional $5,000 at closing); (f) all fees, expenses and disbursements relating to the registration, qualification or exemption of such Units (and the underlying securities) under the securities laws of such foreign jurisdictions as the Representative may reasonably designate; (g) the costs of all mailing and printing of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem necessary, (h) the costs and expenses of the public relations firm referred to herein; (i) the costs of preparing, printing and delivering certificates representing the Units and the securities underlying the Units; (j) fees and expenses of the transfer agent for the Units and the securities underlying the Units; (k) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriter; (l) the costs associated with post-Closing advertising of the Offering in the national editions of the Wall Street Journal and the New York Times; (m) the costs associated with bound volumes of the public offering materials as well as commemorative mementos and lucite tombstones, each of which the Company or its designee will provide within a reasonable time after the Closing in such quantities as the Representative may reasonably request; (n) the fees and expenses of the Company’s accountants; (o) the fees and expenses of the Company’s legal counsel and other agents and representatives; (p) $16,000 for the Representative’s use of i-Deal’s book-building, prospectus tracking and compliance software for the Offering; and (q) up to $10,000 for the Underwriters’ actual “road show” expenses for the Offering. The Underwriter may also deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriter.
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3.25 Reservation of Shares. The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable upon exercise of any of the Securities outstanding from time to time.
3.27 OTC Bulletin Board. The Company will use its best efforts to meet the requirements for quotation on the OTC Bulletin Board or other Trading Market for a period of at least three (3) years from the date of this Agreement, unless the Company fails to consummate an Acquisition Transaction and is required to liquidate its assets pursuant to its Charter Documents. “Trading Market” means the following markets or exchanges on which the Company’s Public Securities are listed or quoted for trading on the date in question: the New York Stock Exchange, NYSE Amex, the Nasdaq Global Market, the Nasdaq Global Select Market or the Nasdaq Capital Market.
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(i) The Company has been duly organized and is validly existing as a corporation and is in good standing under the laws of Delaware with the requisite corporate power to own or lease, as the case may be, and operate its properties, and to conduct its business as described in the Registration Statement and the Prospectus.
(ii) All issued and outstanding securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable and none of such securities were issued in violation of the preemptive rights of any stockholder of the Company arising by operation of law or under the Company’s Charter Documents. The offers and sales of the outstanding securities of the Company were at all relevant times either registered under the Act or exempt from such registration requirements. The authorized, and to the extent of L&L’s knowledge, outstanding shares of capital stock of the Company are as set forth in the Prospectus.
(iii) The Public Securities have been duly authorized and, when issued and paid for, will be validly issued and to L&L’s knowledge, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability solely by reason of being such holders. The Public Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company arising by operation of law or under the Charter Documents. The Over-allotment Option and Underwriter’s Purchase Option constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment therefor, the number of securities called for thereby, and the Over-allotment Option and the Underwriter’s Purchase Option are enforceable against the Company in accordance with their respective terms.
(iv) Each of the Applicable Agreements has been duly and validly authorized and executed by the Company and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms.
(v) The execution, delivery and performance of the Applicable Agreements by the Company with the terms and provisions thereof and the consummation of the transactions contemplated thereby, and the issuance and sale of the Public Securities, do not and will not, with or without the giving of notice or the lapse of time, or both (a) conflict with, or result in a breach of, any of the terms or provisions of, or constitute a default under, or result in the creation or modification of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company pursuant to the terms of any mortgage, deed of trust, note, indenture, loan, contract, commitment or other agreement or instrument filed as an exhibit to the Registration Statement, (b) result in any violation of the provisions of the Charter Documents or any other governing documents of the Company, or (c) violate any U.S. Federal or New York State statute or the Delaware General Corporation Law or any judgment, order or decree, rule or regulation applicable to the Company, or of any U.S. Federal or New York State regulatory authority.
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(vi) The Registration Statement and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements included therein, as to which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and Regulations. The Securities offered pursuant to the Prospectus conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. No United States, New York State or Delaware statute or regulation required to be described in the Prospectus is not described as required, nor are any contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not so described or filed as required.
(vii) The Registration Statement has been declared effective by the Commission. L&L has been orally advised by the Staff of the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued, and to our knowledge, no proceedings for that purpose have been instituted or overtly threatened by the Commission. Any required filing of the Prospectus, and any required supplement thereto, pursuant to Rule 424(b) under the Securities Act, has been made in the manner and within the time period required by Rule 424(b).
(viii) The Company is not and, after giving effect to the Offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended.
(ix) No consent, approval, authorization or filing with or order of any U.S. Federal or New York State governmental agency or body having jurisdiction over the Company is required for the consummation by the Company of the transactions contemplated by the Agreement, except (i) such as have been made or obtained under the Act and (ii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities in the manner contemplated in the Agreement and in the Prospectus, as to which L&L does not express an opinion.
(ix) Except as disclosed in the Registration Statement and based solely on a representation letter from the Company to L&L, to L&L's knowledge, the Company is not a party to any written agreement granting any holders of securities of the Company rights to require the registration under the Act of resales of such securities.
(x) Except as disclosed in the Registration Statement, to L&L's knowledge, the Company is not a party to any written agreement granting any holders of securities of the Company rights to require the registration under the Act of resales of such securities. L&L has relied upon a representation letter from management in connection with this opinion and is not aware of any material facts that would contradict the representatives set forth in such letter.
4.2.2. The opinion of L&L shall further include a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company, the Underwriters and the independent registered public accounting firm of the Company, at which conferences the contents of the Registration Statement and the Prospectus contained therein and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus contained therein, solely on the basis of the foregoing without independent check and verification, no facts have come to the attention of such counsel which lead them to believe that the Registration Statement or any amendment thereto, at the time the Registration Statement or amendment became effective, 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 or the Prospectus or any amendment or supplement thereto, at the time they were filed pursuant to Rule 424(b) or at the date of such counsel’s opinion, 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 statement therein, in light of the circumstances under which they were made, not misleading (except that such counsel need express no view, and shall not be deemed to have rendered belief with respect to, the financial information, statistical data and information and matters regarding non-U.S. Federal or New York State laws, rules and regulations or the Delaware General Corporation Law included in the Registration Statement or the Prospectus). The Registration Statement and the Prospectus and any post-effective amendments or supplements thereto (other than the financial statements including notes and schedules, financial data, statistical data and non-United States laws, rules and regulations included in the Registration Statement or the Prospectus, included therein, as to which no opinion need be rendered) each as of their respective dates complied as to form in all material respects with the requirements of the Act and Regulations.
19
20
5.
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21
22
23
7.2 Right of First Refusal. The Company agrees that if the Units are sold in accordance with the terms of this Underwriting Agreement, the Representative shall have an irrevocable preferential right (the "Right of First Refusal") for a period of six (6) months from the date the Acquisition Transaction is completed (provided the end of which period shall not be more than three (3) years from the Effective Date) to purchase for its account or to sell for the account of the Company, or any subsidiary of or successor to the Company any securities (whether debt or equity or any combination thereof) of the Company or any such subsidiary or successor which the Company or any such subsidiary or successor may seek to sell whether with or without or through an underwriter, placement agent or broker-dealer and whether pursuant to registration under the Act or otherwise. The Company and any such subsidiary or successor will consult the Representative with regard to any such proposed financing and will offer the Representative the opportunity to purchase or sell any such securities on terms not more favorable to the Company or any such subsidiary or successor, as the case may be, than it or they can secure elsewhere. If the Representative fails to accept such offer within 10 business days after the mailing of a notice containing the material terms of the proposed financing proposal by registered mail or overnight courier service addressed to the Representative, then the Representative shall have no further claim or right with respect to the financing proposal contained in such notice. If, however, the terms of such financing proposal are subsequently modified in any material respect, the preferential right referred to herein shall apply to such modified proposal as if the original proposal had not been made. The Representative’s failure to exercise its preferential right with respect to any particular proposal shall not affect its preferential rights relative to future proposals. The Company shall have the right, at its option, to designate the Representative as lead underwriter or co-manager of any underwriting group or co-placement agent of any proposed financing in satisfaction of its obligations hereunder, and the Representative shall be entitled to receive as its compensation 50% of the compensation payable to the underwriting or placement agent group when serving as co-manager or co-placement agent and 33% of the compensation payable to the underwriting or placement agent group when serving as co-manager or co-placement agent with respect to a proposed financing in which there are three co-managing or lead underwriters or co-placement agents. Notwithstanding anything in this Section 7.2, the Representative shall not have any Right of First Refusal with respect to any proposed financing that is initiated by Selway Capital LLC, or its affiliates and where no other underwriter or a placement agent, advisor or investment banking firm are engaged.
24
9.
|
If to the Representative:
Aegis Capital Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax No.: 000-000-0000
Copy to:
Zysman, Aharoni, Xxxxx and Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No.: 000 000 0000
If to the Company:
Selway Capital Acquisition Corporation
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
25
[Signature page immediately follows.]
26
If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
|
||
SELWAY CAPITAL ACQUISITION CORPORATION
|
||
By:
|
||
Name:
|
||
Title:
|
Accepted on the date first above written.
|
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AEGIS CAPITAL CORP.
|
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By:
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Name:
|
|
Title:
|
27
SCHEDULE I
Underwriter
|
Number of Units
|
||
Aegis Capital Corp.
|
|
||
Chardan Capital Markets, LLC
|
|
||
|
2,000,000
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EXHIBIT A
Form of Representative’s Purchase Option Agreement
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) AEGIS CAPITAL CORP. OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF AEGIS CAPITAL CORP. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF: (I) THE CONSUMMATION OF AN ACQUISITION TRANSACTION, POST-ACQUISITION TRANSACTION OR POST-ACQUISITION AUTOMATIC TRUST LIQUIDATION (AS SUCH TERMS ARE DEFINED IN THE UNDERWRITING AGREEMENT, AS DEFINED HEREIN), AS THE CASE MAY BE, OR (II) ___________ ________________ [DATE THAT IS ONE YEAR FROM THE DATE OF THE PROSPECTUS]. VOID AFTER 5:00 P.M. EASTERN TIME, THE EARLIER OF (I) ___________________ [DATE THAT IS FIVE YEARS FROM THE DATE OF EFFECTIVENESS OF THE PROSPECTUS], OR THE DATE IN WHICH THIS PURCHASE OPTION IN ACCORDANCE IS REDEEMED IN ACCORDANCE WITH THE TERMS HEREOF.
UNIT PURCHASE OPTION
For the Purchase of Units Consisting of
One Share of Common Stock and
One Warrant to Purchase Common Stock
of
SELWAY CAPITAL ACQUISITION CORPORATION
A-1
2.1 Exercise Form. In order to exercise this Purchase Option, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Purchase Option and payment of the Exercise Price for the Units being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this Purchase Option shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.
X
|
=
|
Y(A-B)
|
|||||
A
|
|||||||
Where,
|
X
|
=
|
The number of Units to be issued to Holder;
|
||||
Y
|
=
|
The number of Units for which the Purchase Option is being exercised;
|
|||||
A
|
=
|
The fair market value of one Unit; and
|
|||||
B
|
=
|
The Exercise Price.
|
For purposes of this Section 2.2, the fair market value of a Unit is defined as follows:
(i) if the Company’s Units are traded on a securities exchange, the value shall be deemed to be the average of the closing prices on such exchange or market over the thirty (30) day period ending three (3) days prior to the date of the exercise form being submitted in connection with the exercise of the Purchase Option; or
(ii) if the Company’s Units are actively traded over-the-counter, the value shall be deemed to be the average of the closing bid prices over the thirty (30) day period ending three (3) days prior to the date of the exercise form being submitted in connection with the exercise of the Purchase Option; or
(iii) if the Company’s Units are not actively traded but shares of the Company’s common stock (the “Shares”) are actively traded and the warrants that comprise or comprised a part of the Units (the “Warrants”) are actively traded, then a Unit shall be deemed to have a value equal to the value of the shares of common stock and Warrants underlying the Units; or
(iv) if there is no active public market for either the Shares or the Warrants, the value of either or both, as applicable, shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors.
A-2
"The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act") or applicable state law. Neither the securities nor any interest therein may be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Act, or pursuant to an exemption from registration under the Act and applicable state law which, in the opinion of counsel to the Company, is available."
3.2 Restrictions Imposed by the Act. The securities evidenced by this Purchase Option shall not be transferred unless and until: (i) the Company has received the opinion of counsel for the Holder that the securities may be transferred pursuant to an exemption from registration under the Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the Company (the Company hereby agreeing that the opinion of Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxxx & Worcester LLP shall be deemed satisfactory evidence of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement relating to the offer and sale of such securities has been filed by the Company and declared effective by the Securities and Exchange Commission (the "Commission") and compliance with applicable state securities law has been established.
A-3
A-4
4.3.1 Indemnification. The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Act or Section 20 (a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all reasonable attorneys' fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters contained in Section 5.1 of the Underwriting Agreement between the Underwriters and the Company, dated as of [_________________] (the “Underwriting Agreement”). The Holder(s) of the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all reasonable attorneys' fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5.2 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company.
A-5
4.3.3 Documents Delivered to Holders. The Company shall furnish to each Holder participating in any of the foregoing offerings and to each underwriter of any such offering, if any, a signed counterpart, addressed to such Holder or underwriter, of. (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities. The Company shall also deliver promptly to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times as any such Holder shall reasonably request. Notwithstanding the above, the Company shall not be obligated to provide a Holder with material nonpublic information under such Holder signed a non-disclosure agreement in form acceptable to the Company.
4.3.4 Underwriting Agreement. The Company shall enter into an underwriting agreement with the managing underwriter(s), if any, selected by any Holders whose Registrable Securities are being registered pursuant to this Section 4, which managing underwriter shall be reasonably satisfactory to the Company. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their Shares and their intended methods of distribution and in such case agree to customary covenants and indemnification provisions for the benefit of the selling security holders.
A-6
6.1 Adjustments to Exercise Price and Number of Securities. The Exercise Price and the number of Units underlying the Purchase Option (including Shares underlying the Warrants, but without duplication of the adjustment provisions of the Warrants) shall be subject to adjustment from time to time as hereinafter set forth:
A-7
6.2 Substitute Purchase Option. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding Shares), the corporation formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Purchase Option providing that the holder of each Purchase Option then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Option) to receive, upon exercise of such Purchase Option, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of Units and underlying securities of the Company for which such Purchase Option might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Purchase Option shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.
8.1 Holder's Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a shareholder for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. If, however, at any time prior to the expiration of the Purchase Options and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the shareholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other shareholders of the Company at the same time and in the same manner that such notice is given to the shareholders.
A-8
Selway Capital Acquisition Corporation
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
With a copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000
Attention: Xxxxxxxx X. Xxxxxxxx and Xxxxxxxx Xxxxxx
A-9
9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Option shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Option or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Option shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
A-10
[Remainder of page deliberately left blank.]
A-11
SELWAY CAPITAL ACQUISITION CORPORATION
|
|
By:
|
|
Name:
|
|
Title:
|
A-12
[Form to be used to exercise Purchase Option:
Date: , 20___
The undersigned hereby elects irrevocably to exercise the Purchase Option for [___] Units of Selway Capital Acquisition Corporation and hereby makes payment of $[_________] (at the rate of $[___________] per Unit) in payment of the Exercise Price pursuant thereto. Please issue the Units as to which this Purchase Option is exercised in accordance with the instructions given below and, if applicable, a new Purchase Option representing the number of Shares for which this Purchase Option has not been exercised.
or
The undersigned hereby elects irrevocably to convert its right to purchase [___] Units under the Purchase Option for [___] Shares, as determined in accordance with the following formula:
X
|
=
|
Y(A-B)
|
||||
A
|
||||||
Where,
|
X
|
=
|
The number of Units to be issued to Holder;
|
|||
Y
|
=
|
The number of Units for which the Purchase Option is being exercised;
|
||||
A
|
=
|
The fair market value of one Unit which is equal to $[____]; and
|
||||
B
|
=
|
The Exercise Price which is equal to $[_____] per Unit
|
The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.
Please issue the Units as to which this Purchase Option is exercised in accordance with the instructions given below and, if applicable, a new Purchase Option representing the number of Shares for which this Purchase Option has not been converted.
Signature
Signature Guaranteed
A-13
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:
(Print in Block Letters)
Address:
NOTICE: The signature to this form must correspond with the name as written upon the face of the Purchase Option without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
A-14
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Option):
FOR VALUE RECEIVED, does hereby sell, assign and transfer unto the right to purchase Units of Selway Capital Acquisition Corporation ("Company") evidenced by the Purchase Option and does hereby authorize the Company to transfer such right on the books of the Company.
Dated: , 20__
Signature
Signature Guaranteed
NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Option without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.
A-15
EXHIBIT B
[Form of Press Release]
Selway Capital Acquisition Corporation
[Date]
Selway Capital Acquisition Corporation announced today that Aegis Capital Corp., acting as representative for the underwriters in the Company’s recent public offering of units, consisting of shares of common stock and warrants, is [waiving] [releasing] a lock-up restriction with respect to _________ shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on _________, 20___, and the shares may be sold on or after such date.
This press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
EXHIBIT C
FORM OF TARGET BUSINESS LETTER
Selway Capital Acquisition Corporation
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President and Chief Executive Officer
Reference is made to the Final Prospectus of Selway Capital Acquisition Corporation (the “Company”), dated __________, 2011 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Fund, initially in an amount of $[_________] for the benefit of the Public Shareholders and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for interest earned on the amounts held in the Trust Fund, the Company may disburse monies from the Trust Fund only: (i) to the Public Shareholders in the event of the redemption of their shares or the liquidation of the Company; or (ii) to the Company and the Underwriters after consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of consummating an Acquisition Transaction 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 the Company and will not seek recourse against the Trust Fund for any reason whatsoever.
|
|
Print Name of Target Business
|
|
|
|
Authorized Signature of Target Business
|
D-2
EXHIBIT D
FORM OF VENDOR LETTER
Selway Capital Acquisition Corporation
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President and Chief Executive Officer
Reference is made to the Final Prospectus of Selway Capital Acquisition Corporation (the “Company”), dated __________, 2011 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established the Trust Fund, initially in an amount of $[_________] for the benefit of the Public Shareholders and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for interest earned on the amounts held in the Trust Fund, the Company may disburse monies from the Trust Fund only: (i) to the Public Shareholders in the event of the redemption of their shares or the liquidation of the Company; or (ii) to the Company and the Underwriters after consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation.
For and in consideration of the Company 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 contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever.
|
|
Print Name of Vendor
|
|
|
|
|
|
Authorized Signature of Vendor
|
D-3
EXHIBIT E
FORM OF DIRECTOR/OFFICER LETTER
Selway Capital Acquisition Corporation
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President and Chief Executive Officer
Reference is made to the Final Prospectus of Selway Capital Acquisition Corporation (the “Company”), dated __________, 2011 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
The undersigned officer or director of Company hereby acknowledges that the Company has established the Trust Fund, initially in an amount of $[_________] for the benefit of the Public Shareholders and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for interest earned on the amounts held in the Trust Fund, the Company may disburse monies from the Trust Fund only: (i) to the Public Shareholders in the event of the redemption of their shares or the liquidation of the Company; or (ii) to the Company and the Underwriters after consummation of an Acquisition Transaction, Post-Acquisition Tender Offer or Post-Acquisition Automatic Trust Liquidation.
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 contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever.
Notwithstanding the foregoing, such waiver shall not apply to the shares underlying the units acquired by the undersigned or any of its affiliates in the IPO and any shares subsequently acquired by the undersigned in the public market.
|
|
Print Name of Officer/Director
|
|
|
|
|
|
Authorized Signature of Officer/Director
|
A-3