2,500,000 Units CHINA VANTAGEPOINT ACQUISITION COMPANY UNDERWRITING AGREEMENT
2,500,000
Units
______________,
0000
XxxxxXxxxXxxxxxx,
Inc.
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
China
VantagePoint Acquisition Company, a Cayman Islands company with limited
liability (the “Company”), hereby confirms its
agreement with EarlyBirdCapital, Inc. (the “Underwriter” or “EBC”) as follows:
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1.1.
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EarlyBirdCapital,
Inc.
____________,
2011
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1.1.3. Each
whole Warrant shall entitle its holder to purchase one Ordinary Share for $5.00
per share during the period commencing on the later of the consummation by the
Company of its Business Combination (as defined below) and one year from the
Effective Date and terminating on the earlier of (i) the three-year anniversary
of the consummation of a Business Combination, (ii) the liquidation of the Trust
Account (defined below) if the Company is unable to consummate a Business
Combination by the Termination Date (as defined in Section 9.6.1) or (iii) upon
redemption of the Warrants. As used herein, the
term “Business
Combination” shall mean a merger, share exchange, asset acquisition, plan
of arrangement, recapitalization, reorganization or similar business combination
involving one or more entities, whether or not related, or the acquisition of
such entity or entities through the use of contractual
arrangements. The Company has the right to redeem the Warrants, in
whole but not in part, upon not less than thirty (30) days’ prior written notice
at a price of $0.01 per Warrant at any time while the Warrants are exercisable;
provided, however, that the last sale price of the Ordinary Shares has been at
least $8.50 for any twenty (20) trading days within a thirty (30) trading day
period ending on the third (3rd)
Business Day (defined below) prior to the day on which notice is
delivered. As used herein, the term “Business Day” shall mean any
day other than a Saturday, Sunday or any day on which national banks in New
York, New York are not open for business.
1.1.4. Payment and
Delivery. Delivery and payment for the Firm Units shall be made at
the offices of the Underwriter at 10:00 A.M., New York time, on the third
(3rd)
Business Day following the commencement of trading of the Firm Units, or at such
other place or earlier time as shall be agreed upon by the Underwriter and the
Company. The closing of the Offering is referred to herein as the “Closing” and the hour and date
of delivery and payment for the Firm Units is referred to herein as the “Closing Date.” Payment
for the Firm Units shall be made on the Closing Date through the facilities of
Depository Trust Company (“DTC”) by wire transfer in
Federal (same day) funds. An aggregate of $14,075,000 of the proceeds
received by the Company for the Firm Units shall be deposited into the trust
account (the “Trust
Account”) established by the Company for the benefit of the Public
Shareholders (as defined below), as described in the Registration Statement and
pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”) between the
Company and Continental Stock Transfer & Trust Company (“CST&T”). The
remaining proceeds (less commissions and actual expense payments or other fees
payable pursuant to this Agreement) shall be paid to the order of the Company
upon delivery to the Underwriter of certificates (in form and substance
reasonably satisfactory to the Underwriter) representing the Firm Units (or
through the facilities of DTC for the account of the Underwriter). The
Firm Units shall be registered in such name or names and in such authorized
denominations as the Underwriter may request in writing at least two (2)
Business Days prior to the Closing Date. The Company will permit the
Underwriter to examine and package the Firm Units for delivery at least one (1)
full Business Day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the
Underwriter for all the Firm Units. As used herein, the term “Public Shareholders” means the
holders of Subunits sold as part of the Units in the Offering or acquired in the
aftermarket, including any of the Initial Shareholders (as defined in Section
1.4.1 herein) to the extent they acquire such Subunits in the Offering or in the
aftermarket (and solely with respect to such Subunits).
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Inc.
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2011
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1.2.1. The
Underwriter shall have the option (the “Over-Allotment Option”) to
purchase all or less than all of the additional 375,000 units (the “Option Units”) for the
purposes of covering any over-allotments in connection with the distribution and
sale of the Firm Units. Such Option Units shall be identical in all
respects to the Firm Units. The Firm Units and the Option Units are
hereinafter collectively referred to as the “Units,” and the Units, the
Subunits, the Ordinary Shares and the Warrants included in the Units and the
Ordinary Shares issuable upon exercise of the Warrants are hereinafter referred
to collectively as the “Public
Securities.” No Option Units shall be sold or delivered unless the
Firm Units previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Units, or any portion
thereof, may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by the
Underwriter to the Company. The purchase price to be paid for each Option Unit
(net of discounts and commissions) will be $5.79 per Option Unit.
1.2.3. Payment and
Delivery. Payment for the Option Units shall be made on the
Option Closing Date at the Underwriter’s election by wire transfer in Federal
(same day) funds or by certified or bank cashier’s check(s) in New York Clearing
House funds, payable as follows: $5.79 per Option Unit 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 (or through the facilities of DTC) for the account
of the Underwriter). The certificates representing the Option Units to be
delivered will be in such denominations and registered in such names as the
Underwriter requests not less than two full business days prior to the Closing
Date or the Option Closing Date, as the case may be, and will be made available
to the Underwriter for inspection, checking and packaging not less than one full
business day prior to such Closing Date.
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Inc.
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2011
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1.4.1. The
Company issued to certain persons and entities referenced in Part II, Item 15 of
the Registration Statement (collectively, the “Initial Shareholders”), for
aggregate consideration of $25,000, 718,750 Ordinary Shares (the “Insider Shares”) in a private
placement intended to be exempt from registration under Section 4(2) of the
Securities Act of 1933, as amended (the “Act”). No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the sale of the Insider Shares. Except for
certain limited exceptions, the Insider Shares may not be sold, assigned or
transferred by the Initial Shareholders until the one-year anniversary of the
consummation of the Business Combination or the liquidation of the Trust Account
if the Company is unable to consummate a Business Combination by the Termination
Date. The Initial Shareholders shall have no right to any
distributions from the Trust Account with respect to any portion of the Insider
Shares in the event the Company fails to consummate a Business
Combination. The Initial Shareholders shall not have redemption
rights with respect to the Insider Shares (whether the Company engages in a
proxy solicitation to approve a Business Combination or whether the Company
engages in a tender offer).
EarlyBirdCapital,
Inc.
____________,
2011
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1.4.2. Simultaneously
with the Closing Date, (i) the directors of the Company (collectively, the
“Insider Investors”),
(ii) the Underwriter and (iii) the Xxxxx X. Xxxx Grandchildren’s Trust, Xxxx X.
Xxxxxx and Xxxxxxx Capital Management LLC (collectively, the “Third Party Purchasers”) will
purchase from the Company pursuant to Subscription Agreements (as defined in
Section 2.25.2 hereof) an aggregate of (a) 1,500,000 warrants (the “Insider Warrants”), (b)
450,000 warrants (the “EBC
Warrants”) and (c) 692,856 warrants (the “Third Party Warrants” and
together with the Insider Warrants and the EBC Warrants, the “Placement Warrants”),
respectively, in private placements (the “Private Placements”) intended
to be exempt from registration under the Act. The Insider Warrants
and the Ordinary Shares issuable upon exercise of the Insider Warrants are
hereinafter referred to as the “Insider Securities,” the EBC
Warrants and the Ordinary Shares issuable upon exercise of the EBC Warrants are
hereinafter referred to as the “EBC Securities” and the Third
Party Warrants and the Ordinary Shares issuable upon exercise of the Third Party
Warrants are hereinafter referred to as the “Third Party
Securities.” No underwriting discounts, commissions or
placement fees have been or will be payable in connection with the Private
Placements. None of the Insider Securities, EBC Securities or Third
Party Securities may be sold, assigned or transferred (except to their permitted
transferees) by the Insider Investors, the Underwriter or the Third Party
Purchasers until the consummation of a Business Combination or the liquidation
of the Trust Account if the Company is unable to consummate a Business
Combination by the Termination Date.
EarlyBirdCapital,
Inc.
____________,
2011
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2.1.1. Pursuant to the
Act. The Company has filed with the Commission a registration
statement and an amendment or amendments thereto, on Form S-1 (File No.
333-170006), including any related preliminary prospectus (the “Preliminary Prospectus”,
including any prospectus that is included in the Registration Statement
immediately prior to the effectiveness of the Registration Statement), for the
registration of the Public Securities and the Underwriter’s Securities under the
Act, which registration statement and amendment or amendments have been prepared
by the Company in conformity with the requirements of the Act, and the rules and
regulations (the “Regulations”) of the
Commission under the Act. Except as the context may otherwise require,
such registration statement, as amended, on file with the Commission at the time
the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as a
part thereof or incorporated therein and all information deemed to be a part
thereof as of such time pursuant to Rule 430A of the Regulations), is
hereinafter called the “Registration Statement,” and
the form of the final prospectus dated the Effective Date included in the
Registration Statement (or, if applicable, the form of final prospectus
containing information permitted to be omitted at the time of effectiveness by
Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of
the Regulations), is hereinafter called the “Prospectus.” For
purposes of this Agreement, “Time of Sale”, as used in the
Act, means 5:00 p.m., New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared
preliminary prospectuses, dated __________, 2011, for distribution by the
Underwriter (together the “Statutory
Prospectus”). If the Company has filed, or is required
pursuant to the terms hereof to file, a registration statement pursuant to Rule
462(b) under the Act registering additional Securities of any type (a “Rule 462(b) Registration
Statement”), then, unless otherwise specified, any reference herein to
the term “Registration
Statement” shall be deemed to include such Rule 462(b) Registration
Statement. Other than a Rule 462(b) Registration Statement, which, if
filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the
Commission. All of the Public Securities have been registered under
the Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the Securities
Act with the filing of such Rule 462(b) Registration Statement. The
Registration Statement has been declared effective by the Commission on the date
hereof. If, subsequent to the date of this Agreement, the Company or
the Underwriter has determined that at the Time of Sale the Statutory Prospectus
included an untrue statement of a material fact or omitted a statement of
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and have agreed to
provide an opportunity to purchasers of the Firm Units to terminate their old
purchase contracts and enter into new purchase contracts, then the Statutory
Prospectus will be deemed to include any additional information available to
purchasers at the time of entry into the first such new purchase
contract.
EarlyBirdCapital,
Inc.
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2011
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Inc.
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2011
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Inc.
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2011
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2.5. Independent
Accountants. Xxxxxx LLP (“Xxxxxx”), whose report is
filed with the Commission as part of the Registration Statement and included in
the Registration Statement, the Statutory Prospectus and the Prospectus, are
independent registered public accountants as required by the Act, the
Regulations and the Public Company Accounting Oversight Board (the “PCAOB”), including the rules
and regulations promulgated by such entity. To the Company’s
knowledge, Xxxxxx is duly registered and in good standing with the
PCAOB. Xxxxxx has not, during the periods covered by the financial
statements included in the Registration Statement, the Statutory Prospectus and
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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Inc.
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2011
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Inc.
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2011
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Inc.
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2011
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Inc.
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2011
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2.18.1. Except
as described in the Registration Statement, the Statutory Prospectus and the
Prospectus, 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 Company Affiliate 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 Shareholder that may
affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. 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 FINRA member; or (iii) to any person or entity that has any direct or
indirect affiliation or association with any FINRA member, within the twelve
months prior to the Effective Date, other than payments to the Underwriter in
connection with the Offering.
EarlyBirdCapital,
Inc.
____________,
2011
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2.18.3. To
the Company’s knowledge, no officer or director or any direct or indirect
beneficial owner of any class of the Company’s securities, including the Initial
Shareholders and holders of securities to be purchased in the Insider Private
Placement but excluding the EBC Investors (whether debt or equity, registered or
unregistered, regardless of the time acquired or the source from which derived)
(any such individual or entity, a “Company Affiliate”) is a
member, a person associated, or affiliated with a member of FINRA.
2.18.4. To
the Company’s knowledge, no Company Affiliate is an owner of stock or other
securities of any member of FINRA (other than securities purchased on the open
market).
2.18.5. To
the Company’s knowledge, no Company Affiliate has made a subordinated loan to
any member of FINRA.
2.18.6. No
proceeds from the sale of the Public Securities (excluding underwriting
compensation), the Underwriter’s Securities, the Insider Securities, the EBC
Securities, the Third Party Securities or the Insider Shares will be paid to any
FINRA member, or any persons associated or affiliated with a member of FINRA,
except as specifically authorized herein.
2.18.7. Except
as contemplated herein with respect to the Underwriter’s Purchase Option and the
EBC Warrants, the Company has not issued any warrants or other securities, or
granted any options, directly or indirectly to anyone who is a potential
underwriter in the Offering or a related person (as defined by FINRA rules) of
such an underwriter within the 180-day period prior to the initial filing date
of the Registration Statement.
2.18.8. To
the Company’s knowledge no person to whom securities of the Company have been
privately issued within the 180-day period prior to the initial filing date of
the Registration Statement has any relationship or affiliation or association
with any member of FINRA.
2.18.9. To
the Company’s knowledge, no FINRA member intending to participate in the
Offering has a conflict of interest (as defined by FINRA rules) with the
Company.
2.18.10.
Except with respect to the Underwriter and/or its designees in connection with
the Offering, 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 or issuance 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.
EarlyBirdCapital,
Inc.
____________,
2011
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2.19.1. There
are no transfer taxes or other similar fees or charges under Cayman Islands law,
U.S. federal law or the laws of any U.S. state or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale by the Company of the
Securities.
2.19.2. The
Company has filed all non-U.S., U.S. federal, state and local tax returns that
are required to be a filed or has requested extensions thereof, except in any
case in which the failure to so file would not have a Material Adverse Effect,
and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing are due
and payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as would not have a Material Adverse
Effect.
2.19.3. As
of the date of this Agreement, the Company is not a Passive Foreign Investment
Company for Federal income tax purposes.
EarlyBirdCapital,
Inc.
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2011
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2.25.1. Insider
Letters. The Company has caused to be duly executed legally binding
and enforceable agreements (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, contribution or
non-compete provision may be limited under foreign, 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 therefor may be brought)
annexed as exhibits to the Registration Statement (the “Insider Letters”), pursuant to
which each of the Company Affiliates agrees to certain matters, including but
not limited to, the voting of Ordinary Shares held by them and
certain matters described as being agreed to by them under the “Proposed
Business” section of the Registration Statement, the Statutory Prospectus
and Prospectus.
2.25.2. Subscription
Agreements. The Insider Investors have executed and delivered
subscription agreements, the form of which is annexed as an exhibit to the
Registration Statement (the “Subscription Agreements”),
pursuant to which the Insider Investors have agreed, among other things, to
purchase on the Closing Date an aggregate of 1,500,000 Insider Warrants in the
Private Placements. Pursuant to the Subscription Agreements, the
Insider Investors have waived any and all rights and claims they may have to any
proceeds, and any interest thereon, held in the Trust Account in respect of the
Insider Securities, the EBC Securities and the Third Party Securities in the
event that a Business Combination is not consummated and the Trust Account is
liquidated in accordance with the terms of the Trust Agreement. The
Insider Securities, the EBC Securities and the Third Party Securities have been
duly authorized and, when issued and paid for in accordance with the
Subscription Agreements, 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 Insider Securities, the EBC Securities and the
Third Party 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 Insider Securities, the EBC Securities
and the Third Party Securities has been duly and validly taken.
EarlyBirdCapital,
Inc.
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2011
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2.25.4. Non-Competition/Solicitation. No
Directors/Officers are subject to any non-competition agreement or
non-solicitation agreement with any employer or prior employer which could
materially affect each Director’s/Officer’s ability to be and act in the
capacity of a Director/Officer of the Company.
2.25.5. Administrative
Services. The Company has entered into an agreement (“Services Agreement”) with Xxx
Xxx Capital Group, LLC (“Affiliate”) substantially in
the form annexed as an exhibit to the Registration Statement pursuant to which
the Affiliate will make available to the Company general and administrative
services including office space, utilities and secretarial support for the
Company’s use for $7,500 per month.
2.25.6. Loans. The
Initial Shareholders have made loans to the Company in the aggregate amount of
$50,000 (the “Insider
Loans”) pursuant to a promissory note substantially in the forms annexed
as an exhibit to the Registration Statement. The Insider Loans do not
bear any interest and are repayable by the Company on the consummation of the
Offering.
2.25.7. Registration Rights
Agreement. The Company, the Initial Shareholders, the Insider Investors,
the EBC Investors and the Third Party Purchasers have entered into a
registration rights agreement (“Registration Rights
Agreement”) substantially in the form annexed as an exhibit to the
Registration Statement, whereby such parties will be entitled to certain
registration rights as set forth in such Registration Rights Agreement and
described more fully in the Registration Statement.
EarlyBirdCapital,
Inc.
____________,
2011
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2.26. Investment Management Trust
Agreement. The Company has entered into the Trust Agreement with
respect to certain proceeds of the Offering and the Private Placements
substantially in the form filed as an exhibit to the Registration Statement,
pursuant to which the funds held in the Trust Account may be released under
limited circumstances.
EarlyBirdCapital,
Inc.
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2011
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2.34. Definition of
“Knowledge”. As used in herein, the term “knowledge of the Company” (or
similar language) shall mean the knowledge of the Company’s Directors/Officers,
with the assumption that such officers and directors shall have made reasonable
and diligent inquiry of the matters presented.
3.1. Amendments to Registration
Statement. The Company will deliver to the Underwriter, prior to
filing, any amendment or supplement to the Registration Statement or Prospectus
proposed to be filed after the Effective Date and shall not file any such
amendment or supplement to which the Underwriter shall reasonably object in
writing.
3.2. Federal Securities
Laws.
3.2.1. Compliance.
During the time when a prospectus is required to be delivered under the Act, the
Company will use all reasonable efforts to comply with all requirements imposed
upon it by the Act, the Regulations and the Exchange Act and by the regulations
under the Exchange Act, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If at any time
when a Prospectus relating to the Public Securities is required to be delivered
under the Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Underwriters, the
Statutory Prospectus and the Prospectus, as then amended or supplemented
includes an untrue statement of a material fact or omits 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, or if
it is necessary during such period to amend the Registration Statement or amend
or supplement the Statutory Prospectus and Prospectus to comply with the Act,
the Company will notify the Underwriter promptly and prepare and file with the
Commission, subject to Section 3.1 hereof, an appropriate amendment to the
Registration Statement or amendment or supplement to the Statutory Prospectus
and Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
3.2.2. Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Underwriter) with the Commission pursuant to the
requirements of Rule 424 of the Regulations.
EarlyBirdCapital,
Inc.
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2011
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3.2.3. Exchange Act
Registration. For a period of five years from the Effective Date
(except in connection with a going private transaction), or until such earlier
time upon which the Trust Account is to be liquidated if a Business Combination
has not been consummated by the Termination Date, the Company will use its best
efforts to maintain the registration of the Units, Subunits (until the Subunits
separate upon consummation of a Business Combination), Ordinary Shares and
Warrants (in the case of the Units and the Warrants, until the Warrants expire
and are no longer exercisable or have been exercised in full) under the
provisions of the Exchange Act. The Company will not deregister the Units,
Subunits, Ordinary Shares or Warrants under the Exchange Act without the prior
written consent of the Underwriter.
3.2.4. Exchange Act
Filings. From the Effective Date until the earlier
of five years after the consummation of the Company’s initial Business
Combination, or the liquidation of the Trust Account if a Business Combination
is not consummated by the Termination Date, the Company shall timely file with
the Commission via the Electronic Data Gathering, Analysis and Retrieval System
("XXXXX") such
statements and reports as are required to be filed by a company registered under
Section 12(g) of the Exchange Act, as if the Company were a company incorporated
in the United States (it being agreed, however, that if the Company becomes a
foreign private issuer, with respect to quarterly and annual financial
information, the Company may furnish such information on Form 6-K or Form 20-F,
as the case may be, and with respect to proxy solicitation materials a
preliminary proxy statement shall not be required to be filed with the
Commission).
3.2.5. Xxxxxxxx-Xxxxx
Compliance. As soon as it is legally required to do so, the
Company shall take all actions necessary to obtain and thereafter maintain
material compliance with each applicable provision of SOX and the rules and
regulations promulgated thereunder and related or similar rules and regulations
promulgated by any other governmental or self regulatory entity or agency with
jurisdiction over the Company.
3.3. Blue Sky
Filing. Unless the Securities are listed or quoted, as the case may
be, on the New York Stock Exchange, the Nasdaq Stock Market or the NYSE Amex
(“AMEX”), the Company
will endeavor in good faith, in cooperation with the Underwriter, at or prior to
the time the Registration Statement becomes effective, to qualify the Public
Securities for offering and sale under the securities laws of such jurisdictions
as the Underwriter may reasonably designate, provided that no such qualification
shall be required in any jurisdiction where, as a result thereof, the Company
would be subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction. All blue sky work shall
be undertaken by counsel of the Underwriter’s choice. In each
jurisdiction where such qualification shall be effected, the Company will,
unless the Underwriter agrees that such action is not at the time necessary or
advisable, use all reasonable efforts to file and make such statements or
reports at such times as are or may be required by the laws of such
jurisdiction.
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Inc.
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2011
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3.7.1. Business
Combinations. The Company will not consummate a Business
Combination with any entity which is affiliated with any Company Affiliate
unless the Company obtains an opinion from an independent investment banking
firm reasonably acceptable to the Underwriter that the Business Combination is
fair to the Company’s shareholders from a financial
perspective.
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Inc.
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2011
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3.10.1. Periodic Reports,
etc. For a period of five years from the Effective Date or until
such earlier time upon which the Company is required to be liquidated and
dissolved, the Company will furnish to the Underwriter and its 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 its securities,
and promptly furnish to the Underwriter: (i) a copy of each periodic report the
Company shall be required to file with the Commission; (ii) a copy of every
press release and every news item and article with respect to the Company
or its affairs which was released by the Company; (iii) a copy of each
Current Report on Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or
prepared by the Company; (iv) five copies of each registration statement filed
by the Company with the Commission under the Securities Act; and (v) 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; provided that the Underwriter shall sign, if requested
by the Company, a Regulation FD compliant confidentiality agreement which is
reasonably acceptable to the Underwriter and its counsel in connection with the
Underwriter’s receipt of such information. Documents filed with the
Commission pursuant to XXXXX shall be deemed to have been delivered to the
Underwriter pursuant to this section.
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Inc.
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2011
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3.10.2. For
a period of five years following the Effective Date or until the Company’s
earlier dissolution and liquidation, the Company shall retain a transfer and
warrant agent acceptable to the Underwriter. CST&T is acceptable
to the Underwriters.
EarlyBirdCapital,
Inc.
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2011
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3.12.2
Failure to
Perform. If the Underwriter elects not to proceed with the
Offering for reasons other than as described in the next sentence, the
Underwriter shall be responsible for its own out-of-pocket
expenses. If (i) the Underwriter elects not to proceed with the
Offering because the Company has materially breached any of its representations,
warranties or obligations hereunder, or (ii) if the Company elects not to
proceed with the Offering for any reason, the Company shall be obligated to
reimburse the Underwriter in full for its reasonable out-of pocket accountable
expenses actually incurred through such date, up to an aggregate of
$75,000.
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Inc.
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2011
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3.16.1. Business
Combination. For a period of ninety days following the
Effective Date, in the event any person or entity (regardless of any FINRA
affiliation or association) is engaged to assist the Company in its search for a
Business Combination candidate or to provide any similar Business
Combination-related services, the Company will provide the following information
(the “Business Combination
Information”) to FINRA and the Underwriter: (i) complete
details of all services and copies of agreements governing such services (which
details or agreements may be appropriately redacted to account for privilege or
confidentiality concerns); and (ii) justification as to why the person or
entity providing the Business Combination-related services should not be
considered an “underwriter and related person” with respect to the Company’s
initial public offering, as such term is defined in Rule 5110 of FINRA’s 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 shareholder approval for the
Business Combination. Upon the Company’s delivery of the Business
Combination Information to the Underwriter, the Company hereby expressly
authorizes the Underwriter to provide such information directly to FINRA as a
result of representations the Underwriter have made to FINRA in connection with
the Offering.
3.16.2. Broker/Dealer. In the
event the Company intends to register as a broker/dealer, merge with or acquire
a registered broker/dealer, or otherwise become a member of FINRA, it shall
promptly notify FINRA.
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Inc.
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2011
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Inc.
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2011
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3.28.1. The
Company hereby acknowledges and agrees that the Insider Warrants shall be
exercisable on a cashless basis and that the Insider Warrants, as well as any
Warrants purchased by the Insiders in the open market after the Offering, shall
not be redeemable by the Company, in each event so long as such warrants are
held by the Insiders or their affiliates.
3.28.2. The
Company hereby acknowledges and agrees that the EBC Warrants and the Third Party
Warrants, as well as any Warrants purchased by EBC, the Third Party Purchasers
or their affiliates in the open market after the Offering, shall not be
redeemable by the Company unless, in connection with such redemption, the
Company requires all holders to exercise their Warrants on a “cashless basis,”
so long as such EBC Warrants and Third Party Warrants are held by the EBC
Investors, the Third Party Purchasers or their affiliates.
EarlyBirdCapital,
Inc.
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2011
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3.32. Business Combination
Announcement. Within five business days following the
consummation by the Company of a Business Combination, the Company shall cause
an announcement (“Business
Combination Announcement”) to be placed, at its cost, in The Wall Street
Journal, The New York Times and a third publication to be selected by the
Underwriter announcing the consummation of the Business Combination and
indicating that the Underwriter was the managing underwriter in the Offering and
the Company’s investment banker on the Business Combination. The
Company shall supply the Underwriter with a draft of the Business Combination
Announcement and provide the Underwriter with a reasonable opportunity to
comment thereon. The Company will not place the Business Combination
Announcement without the final approval of the Underwriter, which such approval
will not be unreasonably withheld.
EarlyBirdCapital,
Inc.
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2011
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5.1.1. Effectiveness of
Registration Statement. The Registration Statement shall have
become effective not later than 5:00 p.m., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by the
Underwriter, and, at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of GM.
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Inc.
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2011
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(i) Confirming
that they are independent accountants with respect to the Company within the
meaning of the Act and the applicable Regulations and that they have not, during
the periods covered by the financial statements included in the Registration
Statement, the Statutory Prospectus and the Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10A(g) of the
Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that: (a)
the unaudited financial statements of the Company included in the Registration
Statement, the Statutory Prospectus and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited financial statements of the Company included in the
Registration Statement, the Statutory Prospectus and the Prospectus; or (b) at a
date not later than five days prior to the Effective Date or Closing Date, as
the case may be, there was any change in the capital stock or long-term debt of
the Company, or any decrease in the shareholders’ equity of the Company as
compared with amounts shown in the October 6, 2010 balance sheet included in the
Registration Statement, the Statutory Prospectus and the Prospectus, other than
as set forth in or contemplated by the Registration Statement, the Statutory
Prospectus and the Prospectus, or, if there was any decrease, setting forth the
amount of such decrease, and (c) during the period from October 6, 2010 to a
specified date not later than two (2) days prior to the Effective Date or
Closing Date, as the case may be, there was any decrease in revenues, net
earnings or net earnings per Ordinary Share, in each case as compared with the
corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement and the Prospectus, or, if there was
any such decrease, setting forth the amount of such decrease;
EarlyBirdCapital,
Inc.
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2011
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(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company;
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Statutory Prospectus
and the Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the general
accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not during the immediately preceding five year period brought to
the attention of the Company’s management any reportable condition related to
internal structure, design or operation as defined in the Statement on Auditing
Standards No. 60 “Communication of Internal Control Structure Related Matters
Noted in an Audit,” in the Company’s internal controls; and
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as the
Underwriter may reasonably request.
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Inc.
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2011
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Inc.
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2011
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Inc.
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2011
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Inc.
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2011
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7.3.1. Contribution
Rights. In order to provide for just and equitable contribution
under the Act in any case in which (i) any person entitled to
indemnification under this Section 7 makes claim for indemnification
pursuant hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be required on the
part of any such person in circumstances for which indemnification is provided
under this Section 7, then, and in each such case, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial offering price appearing thereon and the Company
is responsible for the balance; provided, that, no person guilty of a 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. For purposes of this Section, each director, officer
and employee of an Underwriter or the Company, as applicable, and each person,
if any, who controls an Underwriter or the Company, as applicable, within the
meaning of Section 15 of the Act shall have the same rights to contribution
as the Underwriter or the Company, as applicable.
7.3.2. Contribution
Procedure. Within fifteen days after receipt by any party to this
Agreement (or its representatives) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (“contributing party”), notify
the contributing party of the commencement thereof, but the omission to so
notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representatives of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available.
EarlyBirdCapital,
Inc.
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2011
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8. Intentionally
Omitted.
9.1. Additional Shares or
Options. The Company hereby agrees that until the Company
consummates a Business Combination, it shall not issue any Subunits, any
Ordinary Shares or any options or other securities convertible into Ordinary
Shares or any Preferred Shares which participate in any manner in the Trust
Account or which vote as a class with the Ordinary Shares on a Business
Combination.
9.2. Trust Account Waiver
Acknowledgments. The Company hereby agrees that it will not
commence its due diligence investigation of any Target Business or obtain the
services of any vendor unless and until such Target Business or vendor
acknowledges in writing, whether through a letter of intent, memorandum of
understanding or other similar document (and subsequently acknowledges the same
in any definitive document replacing any of the foregoing), that (a) it has read
the Prospectus and understands that the Company has established the Trust
Account, initially in an amount of $15,000,000 for the benefit of the Public
Shareholders and that, except for the interest earned on the amounts held in the
Trust Account, the Company may disburse monies from the Trust Account only: (i)
to the Public Shareholders in the event of the conversion of their Subunits or
the dissolution and liquidation of the Trust Account as part of the Company’s
plan of dissolution and liquidation, (ii) to purchase Subunits prior to the
consummation of a Business Combination in accordance with the Plan or (iii) to
the Company after it consummates a Business Combination, and (b) for and in
consideration of the Company (1) agreeing to evaluate such Target Business for
purposes of consummating a Business Combination with it or (2) agreeing to
engage the services of the vendor, as the case may be, such Target Business or
vendor agrees that it does not have any right, title, interest or claim of any
kind in or to any monies of the Trust Account (“Claim”) and 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 Account for any reason whatsoever. The foregoing letters shall
substantially be in the form attached hereto as Exhibit
D and E,
respectively.
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Inc.
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2011
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EarlyBirdCapital,
Inc.
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2011
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11. Effective Date of This
Agreement and Termination Thereof.
EarlyBirdCapital,
Inc.
____________,
2011
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If to the
Underwriter:
EarlyBirdCapital,
Inc.
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Fax No.:
___________
Email:
xxxxxxx@xxxxx.xxx
With a
copy (which shall not constitute notice) to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(000) 000-0000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
Email:
xxxxxxx@xxxxxxxx.xxx
|
|
If
to the Company, to:
|
000
Xxxxxxxx Xxxxxx, #000
Xxxxx,
Xxxxxxx 00000
Fax No.:
___________
Attn: Ye
(Sophie) Tao
Email:
xxxxxxxxx@xxxxx.xxx
With a copy (which shall not constitute
notice) to:
Loeb
& Loeb, LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Fax No.:
(000) 000-0000
Attn:
Xxxxxxxx Xxxxxxx, Esq.
Email:
xxxxxxxxx@xxxx.xxx
EarlyBirdCapital,
Inc.
____________,
2011
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of 47
12.6.1. In
connection with Section 5-1401 of the General Obligations Law of the State of
New York, this Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
law that would result in the application of the substantive law of another
jurisdiction. The parties hereto agree that any action, proceeding or
claim arising out of or relating in any way to this Agreement shall be resolved
through final and biding arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitration shall be brought before the AAA
International Center for Dispute Resolution’s offices in New York City, New
York, will be conducted in English and will be decided by a panel of three
arbitrators selected from the AAA Commercial Disputes Panel and that the
arbitrator panel’s decision shall be final and enforceable by any court having
jurisdiction over the party from whom enforcement is sought. The cost
of such arbitrators and arbitration services, together with the prevailing
party’s legal fees and expenses, shall be borne by the non-prevailing party or
as otherwise directed by the arbitrators. The Company hereby
appoints, without power of revocation, Loeb & Loeb, LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Fax No.: (000) 000-0000, Attn: Xxxxxxxx Xxxxxxx, Esq.,
as their respective agent to accept and acknowledge on its behalf service of any
and all process which may be served in any arbitration, action, proceeding or
counterclaim in any way relating to or arising out of this
Agreement. The Company further agrees to take any and all action as
may be necessary to maintain such designation and appointment of such agent in
full force and effect for a period of seven years from the date of the Effective
Date.
EarlyBirdCapital,
Inc.
____________,
2011
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12.6.2. THE
COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON
BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS.
12.6.3. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys’
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
[Signature
Page Follows]
EarlyBirdCapital,
Inc.
____________,
2011
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of 47
If the
foregoing correctly sets forth the understanding between the Underwriter 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,
|
||
| By: |
|
|
|
Name:
|
||
|
Title:
|
||
Agreed
to and accepted
as
of the date first written above:
EARLYBIRDCAPITAL,
INC.
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Signature
Page to Underwriting Agreement, dated ____________, 2011]