10,000,000 Units SECURE AMERICA ACQUISITION CORPORATION UNDERWRITING AGREEMENT
10,000,000
Units
___________,
2007
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.,
As
Representative of the Several Underwriters
0000
Xxxxxxxxx Xxxx, XX
Xxxxxxx,
XX 00000
Ladies
and Gentlemen:
Secure
America Acquisition Corporation, a Delaware corporation (the “Company”),
proposes to sell to the several underwriters named on Schedule I hereto for
which SunTrust Xxxxxxxx Xxxxxxxx, Inc. is acting as representative (in such
capacity, the “Representative”) an aggregate of 10,000,000 units (the “Firm
Units”), with each unit consisting of one share (collectively, the “Unit
Shares”) of the Company’s common stock, $.0001 par value (the “Common Stock”),
and one warrant (collectively, the “Warrants”) to purchase Common Stock (the
“Firm Units”). The Company also proposes to sell, at the Underwriters’ option,
an aggregate of up to 1,500,000 additional units of the Company (the “Option
Units” and, together with the Firm Units, the “Units”) as set forth below. The
terms of the Warrants are provided for in the form of the Warrant Agreement
(defined herein). The Units, the Unit Shares, the Warrants and the Common Stock
underlying the Warrants (the “Warrant Shares,” and, together with the Unit
Shares, the “Shares”) are herein collectively called the
“Securities.”
The
Unit
Shares and the Warrants will not be separately tradeable until the ninetieth
day
following the date of the Prospectus (as hereinafter defined) unless the
Representative determines that an earlier date is acceptable, subject to
(a) the
preparation of an audited balance sheet of the Company reflecting receipt
by the
Company of the proceeds of the offering and the filing of such audited balance
sheet with the Securities and Exchange Commission (the “Commission”) on a
Form 8-K or similar form by the Company which includes such balance sheet
and (b) the Company issuing a press release announcing when such separate
trading will begin. Each Warrant entitles its holder, upon exercise, to purchase
one Warrant Share for $5.25 during the period commencing on the later of
the
consummation by the Company of its “Business Combination” or one year after the
date of effectiveness (the “Effective Date”) of the Registration Statement (as
hereinafter defined) under the Act (as hereinafter defined) and terminating
on
the four-year anniversary of the Effective Date. As used herein, the term
“Business Combination” (as described more fully in the Registration Statement)
shall mean the Company’s initial acquisition, or acquisition of control, of one
or more operating businesses through a merger, capital stock exchange, stock
purchase, asset acquisition or other similar business combination in the
homeland security industry.
The
Company has entered into an Investment Management Trust Agreement, dated as
of
the date hereof, with Continental Stock Transfer & Trust Company (the
“Trustee”), as trustee, in substantially the form filed as an exhibit to the
Registration Statement (the “Trust Agreement”), pursuant to which certain
proceeds of the offering of the Securities will be deposited and held in a
trust
account (the “Trust Account”) for the benefit of the Company and holders of the
Firm Units and the Option Units, if and when issued.
The
Company has entered into a Warrant Agreement, dated as of the date hereof,
with
respect to the Warrants with Continental Stock Transfer & Trust Company, as
warrant agent (the “Warrant Agent”), in substantially the form filed as an
exhibit to the Registration Statement (the “Warrant Agreement”), pursuant to
which the Warrant Agent will act as warrant agent in connection with the
issuance, registration, transfer, exchange, redemption and exercise of the
Warrants and the Private Placement Warrants (as hereinafter
defined).
The
Company has entered into Subscription Agreements, dated as of May 21, 2007
(the “Subscription Agreements”), with Secure America Acquisition Holdings, LLC
(“XXXX”), Xxx Xxxxxxxxxx, Xxxxxx X. XxXxxxx, S. Xxxx Xxxxxxxx, Xxxx X. Xxxxxx
and Xxxxx X. Xxxxxxx (the “Initial Stockholders”), pursuant to which the Initial
Stockholders have purchased an aggregate of 2,500,000 shares of Common Stock
(the “Founder Shares”) at an aggregate price of $25,000.
The
Company has entered into a Warrant Purchase Agreement, dated as of ________,
2007, with XXXX (the “Warrant Purchase Agreement”), pursuant to which XXXX has
agreed to purchase an aggregate of 2,075,000 Warrants (the “Private Placement
Warrants”) for a price per Warrant of $1.00, for a total of $2,075,000, in a
private placement to be completed prior to the offering of the Units (the
“Private Placement”). The Private Placement Warrants possess terms identical to
the Warrants except with respect to the exercise thereof and certain transfer
restrictions applicable thereto, as set forth in the Warrant Purchase
Agreement.
The
Company has entered into an agreement (the “Services Agreement”), dated as of
the date hereof, with Homeland Security Capital Corporation (“HSCC”), an
affiliate of the Company’s Chairman, pursuant to which the Company will pay an
aggregate monthly fee of $7,500 for general and administrative services,
including office space, utilities and secretarial support, for a period of
up to
twenty-four (24) months following the Effective Date, terminating upon the
completion of a Business Combination.
The
Company has entered into a Registration Rights Agreement, dated as of the date
hereof, in substantially the form filed as an exhibit to the Registration
Statement (the “Registration Rights Agreement”), pursuant to which the Company
has granted certain registration rights in respect of the Founder Shares, the
Private Placement Warrants and the Common Stock underlying the Private Placement
Warrants.
The
Company has caused to be duly executed and delivered letters by each Initial
Stockholder and each of the Company’s directors, officers and special advisors,
filed as exhibits to the Registration Statement (as the same may be amended
or
supplemented from time to time, the “Insider Letters”), pursuant to which each
of the Initial Stockholders and each of the Company’s directors, officers and
special advisors agrees to certain matters, including but not limited to,
certain matters relating to the voting of shares of Common Stock owned by them,
if any, and certain other matters described as being agreed to by them under
the
“Proposed Business” section of the Statutory Prospectus (as defined below) and
the Prospectus.
The
Company has entered into, and has caused to be duly executed and delivered
by
each Initial Stockholder, a Stock Escrow Agreement, dated as of the date hereof,
with the Trustee, as trustee, in substantially the form filed as an exhibit
to
the Registration Statement (the “Stock Escrow Agreement”), pursuant to which the
Founder Shares will be deposited and held in trust.
The
Company has entered into, and has caused to be duly executed and delivered
by
XXXX, a Warrant Escrow Agreement, dated as of the date hereof, with the Trustee,
as trustee, in substantially the form filed as an exhibit to the Registration
Statement (the “Warrant Escrow Agreement”), pursuant to which the Private
Placement Warrants will be deposited and held in trust.
1. Representations
and Warranties of the Company.
The
Company represents and warrants to each of the Underwriters as
follows:
(a) A
registration statement on Form S-1 (File No. 333-144028) with respect to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the “Act”), and the rules and
regulations (the “Rules and Regulations”) of the Securities and Exchange
Commission (the “Commission”) thereunder and has been filed with the Commission.
Copies of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been delivered by the Company
to
the Representative. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) under the Act, is herein
referred to as the “Registration Statement,” which shall be deemed to include
all information omitted therefrom in reliance upon Rules 430A or 430C under
the
Act and contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration Statement
has
been filed as of the date of this Agreement. “Prospectus” means the form of
prospectus first filed with the Commission pursuant to and within the time
limits described in Rule 424(b) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective
is
herein referred to as a “Preliminary Prospectus.” Any reference herein to the
Registration Statement, any Preliminary Prospectus or to the Prospectus or
to
any amendment or supplement to any of the foregoing documents shall be deemed
to
refer to and include any documents incorporated by reference therein, and,
in
the case of any reference herein to the Prospectus, also shall be deemed to
include any documents incorporated by reference therein, and any supplements
or
amendments thereto, filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Act, and prior to the termination of
the
offering of the Securities by the Underwriters. The Company has filed with
the
Commission a Form 8-A (File Number 001-____) providing for the registration
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of
the Securities, which registration is effective on the date hereof.
(b) As
of the
Applicable Time (as defined below) and as of the Closing Date or the Option
Closing Date (each such term as defined below), as the case may be, the
Statutory Prospectus (as defined below) and the information included in
Schedule II hereto (collectively, the “General Disclosure Package”) did not
and will not include any untrue statement of a material fact or omitted or
will
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
provided, however, that the Company makes no representations or warranties
as to
information contained in or omitted from the General Disclosure Package, in
reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of the Underwriters, specifically for use therein,
it
being understood and agreed that the only such information is that described
in
Section 12 herein. As used in this subsection and elsewhere in this
Agreement:
(i) “Applicable
Time” means ______ [a/p]m
(New
York time) on the date of this Agreement or such other time as agreed to by
the
Company and the Representative.
(ii) “Statutory
Prospectus” as of any time means the Preliminary Prospectus relating to the
Securities that is included in the Registration Statement immediately prior
to
such time.
(c) The
Registration Statement contains, and the Prospectus and any amendments or
supplements thereto will contain, all statements which are required to be stated
therein by, and will conform to, the requirements of the Act and the Rules
and
Regulations. The Registration Statement and any amendment thereto do not
contain, and will not contain, any untrue statement of a material fact and
do
not omit, and will not omit, to state a material fact required to be stated
therein, in light of the circumstances under which they were made, or necessary
to make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of a material fact, and do not omit, and will not omit, to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from
the
Registration Statement or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information furnished to
the
Company by or on behalf of any of the Underwriters, specifically for use
therein, it being understood and agreed that the only such information is that
described in Section 12 herein.
(d) The
Units, the Warrants and the Common Stock have been duly listed, and admitted
and
authorized for trading, subject only to official notice of issuance, on the
American Stock Exchange, and the Company knows of no reason or set of facts
which is likely to adversely affect such approval. Neither the Commission nor
any state regulatory authority has issued any order preventing or suspending
the
use of any Preliminary Prospectus or the Prospectus relating to the proposed
offering of the Securities or has instituted or, to the Company’s knowledge,
threatened to institute any proceedings with respect to such an order. Neither
the Commission nor any state regulatory authority has issued any order
preventing or suspending the effectiveness of the Registration Statement, and
no
proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or is pending or is contemplated or threatened by the
Commission.
(e) The
information set forth under the caption “Capitalization” in the Registration
Statement and the Prospectus is true and correct. All of the Securities conform
to the description thereof contained in the Registration Statement and the
Prospectus. The certificates for the Securities are in valid, sufficient and
proper form.
(f) The
agreements and documents described in the Registration Statement, the Statutory
Prospectus and the Prospectus conform, to the extent described therein, in
all
material respects to the descriptions thereof contained therein. There is no
franchise, contract or other document of a character required to be described
in
the Registration Statement, Statutory Prospectus or Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required (and the
Statutory Prospectus contains in all material respects the same description
of
the foregoing matters contained in the Prospectus), and the statements in the
Statutory Prospectus and the Prospectus under the headings “Principal
Stockholders,” “Certain Transactions,” “Description of Securities” and “Legal
Matters” insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries
of
such legal matters, agreements, documents or proceedings.
(g) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with full corporate
power
and authority to own or lease, as the case may be, its properties and conduct
its business as described in the Registration Statement and the Prospectus.
The
Company is duly qualified to transact business in all jurisdictions in which
the
conduct of its business requires such qualification. The Company has no
subsidiaries, direct or indirect.
(h) All
issued and outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable. The offers and
sales
of the outstanding Common Stock were at all relevant times either registered
under the Act, the applicable state securities and Blue Sky laws or, based
in
part on the representations and warranties of the purchasers of such shares
of
Common Stock, exempt from such registration requirements. The holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for securities, and, except as set
forth
in the Registration Statement and the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(i) The
Units
have been duly authorized and, when executed by the Company and countersigned,
and issued and delivered against payment therefor by the Underwriters pursuant
to this Agreement, will be validly issued. The holders of such Units are not
and
will not be subject to personal liability by reason of being such holders;
such
Units are not and will not be subject to any preemptive or other similar
contractual rights granted by the Company; and all corporate action required
to
be taken for the authorization, issuance and sale of such Units (other than
such
execution, countersignature and delivery at the time of issuance) has been
duly
and validly taken.
(j) The
Unit
Shares have been duly authorized and, when executed by the Company and
countersigned, and issued and delivered against payment therefor by the
Underwriters pursuant to this Agreement, will be validly issued, fully paid
and
non-assessable. The holders of such Unit Shares are not and will not be subject
to personal liability by reason of being such holders; such Unit Shares are
not
and will not be subject to any preemptive or other similar contractual rights
granted by the Company; and all corporate action required to be taken for the
authorization, issuance and sale of such Common Stock (other than such
execution, countersignature and delivery at the time of issuance) has been
duly
and validly taken.
(k) The
Warrants included in the Units, when executed, authenticated, issued and
delivered in the manner set forth in the Warrant Agreement against payment
therefor by the Underwriters pursuant to this Agreement, will be duly
authorized, duly executed, authenticated, issued and delivered, and will
constitute valid and binding obligations of the Company, enforceable against
the
Company in accordance with their terms, except as the enforceability thereof
may
be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(l) The
Warrant Shares have been duly authorized and, when executed by the Company
and
countersigned, and issued and delivered against payment therefor pursuant to
the
Warrants and the Warrant Agreement, will be validly issued, fully paid and
non-assessable. The holders of such Warrant Shares are not and will not be
subject to personal liability by reason of being such holders; such Common
Stock
is not and will not be subject to any preemptive or other similar contractual
rights granted by the Company; and all corporate action required to be taken
for
the authorization, issuance and sale of such Common Stock (other than such
execution, countersignature and delivery at the time of issuance) has been
duly
and validly taken.
(m) 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 under the Act or to include any such
securities in a registration statement to be filed by the Company.
(n) Except
as
set forth in the Registration Statement and the Prospectus, 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 from its date of incorporation through and including the date
hereof.
(o) 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 with the offer and sale of the Securities pursuant to the
Registration Statement.
(p) This
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and binding agreement of the Company, enforceable against the Company
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability.
(q) The
Trust
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and binding agreement of the Company, enforceable against the Company
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability.
(r) The
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(s) The
Warrant Purchase Agreement has been duly authorized, executed and delivered
by
the Company and XXXX, and is a valid and binding agreement of the Company
and
XXXX, enforceable against the Company and XXXX in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency,
or similar laws affecting creditors’ rights generally from time to time in
effect and by equitable principles of general applicability. The entire
$2,075,000 of proceeds from the sale of the Private Placement Warrants has
been
deposited in the Trust Account in accordance with the terms of the Warrant
Purchase Agreement.
(t) Each
Subscription Agreement has been duly authorized, executed and delivered by
the
Company and the respective Initial Stockholder, and is a valid and binding
agreement of the Company and the respective Initial Stockholder, enforceable
against the Company and such Initial Stockholder in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency,
or similar laws affecting creditors’ rights generally from time to time in
effect and by equitable principles of general applicability.
(u) The
Services Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(v) The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar laws affecting
creditors’ rights generally from time to time in effect and by equitable
principles of general applicability.
(w) Each
of
the Insider Letters has been duly authorized, executed and delivered by each
of
the individuals party thereto and is a valid and binding agreement of each
of
such parties, enforceable against each of them in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency,
or similar laws affecting creditors’ rights generally from time to time in
effect and by equitable principles of general applicability.
(x) The
financial statements of the Company, together with related notes and schedules
as set forth in the Registration Statement and the Prospectus, present fairly
the financial position and the results of operations and cash flows of the
Company at the indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in accordance with generally
accepted principles of accounting in the United States (“GAAP”), consistently
applied throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary and selected financial and statistical data included
or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein and such data has been compiled
on
a basis consistent with the financial statements presented therein and the
books
and records of the Company. The pro forma financial statements and other pro
forma financial information included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared
in
accordance with the Commission’s rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, the assumptions used
in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. The Company does not have any material liabilities or obligations,
direct or contingent (including any off balance sheet obligations or any
“variable interest entities” within the meaning of Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the Registration
Statement and the Prospectus. There are no financial statements (historical
or
pro forma) that are required to be included in the Registration Statement or
the
Prospectus that are not included as required.
(y) Xxxxxxxxx
Xxxxx Xxxxxxx LLP (“GGK”), who has certified the financial statements that are
filed with the Commission as part of the Registration Statement and the
Prospectus, is an independent registered public accounting firm with respect
to
the Company within the meaning of the Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board (United States)
(the “PCAOB”). GGK has not, during the periods covered by the financial
statements included in 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.
(z) The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The
Company has good and marketable title to all of the properties and assets
reflected in the financial statements hereinabove described or described in
the
Registration Statement and the Prospectus, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such financial
statements or described in the Registration Statement and the Prospectus. The
Company occupies its leased properties under valid and binding
leases.
(bb) There
are
no transfer taxes or other similar fees or charges under federal law or the
laws
of any 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. The Company has filed all federal, state,
local and foreign tax returns which have been required to be filed and have
paid
all taxes indicated by such returns and all assessments received by it to the
extent that such taxes have become due. All tax liabilities have been adequately
provided for in the financial statements of the Company, and the Company does
not know of any actual or proposed additional material tax
assessments.
(cc) Since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus, as each may be amended or supplemented, there has not been
any material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise), or prospects
of
the Company, whether or not occurring in the ordinary course of business, and
there has not been any material transaction entered into or any material
transaction that is probable of being entered into by the Company, other than
transactions in the ordinary course of business and changes and transactions
described in the Registration Statement and the Prospectus, as each may be
amended or supplemented. The Company has no material contingent obligations
which are not disclosed in the Company’s financial statements which are included
in the Registration Statement and the Prospectus.
(dd) There
is
no action, suit, claim or proceeding pending, or to the knowledge of the Company
threatened, against the Company or, pending, or to the knowledge of the Company
threatened, against any of the Company’s stockholders immediately prior to the
offering of the Units, before any court or administrative agency or otherwise
which if determined adversely to the Company would either (i) have, individually
or in the aggregate, a material adverse effect on the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company or (ii) prevent the consummation of
the transactions contemplated hereby (the occurrence of any such effect or
any
such prevention described in the foregoing clauses (i) and (ii) being referred
to as a “Material Adverse Effect”), except as set forth in the Registration
Statement and the Prospectus.
(ee) The
Company is not, nor with the giving of notice or lapse of time or both, will
it
be, (i) in violation of its certificate of incorporation, as amended and in
effect on the date hereof (the “Certificate of Incorporation”), bylaws, as
amended and in effect on the date hereof (the “Bylaws”), or other organizational
documents or (ii) in violation of or in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party
or
by which it, or any of its properties, is bound and, solely with respect to
this
clause (ii), which violation or default could reasonably be expected to have
a
Material Adverse Effect.
(ff) The
Company possesses all licenses, certificates, permits and other authorizations
issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit.
(gg) Each
approval, consent, order, authorization, designation, declaration or filing
by
or with any regulatory, administrative or other governmental body necessary
in
connection with the execution and delivery by the Company of this Agreement,
the
Trust Agreement, the Warrant Agreement, the Subscription Agreements, the Warrant
Purchase Agreement, the Registration Rights Agreement, the Services Agreement
and the Insider Letters and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the Financial Industry Regulatory Authority ("FINRA"), or such additional steps
as may be necessary to qualify the Securities for public offering by the
Underwriters under state securities or Blue Sky laws) has been obtained or
made
and is in full force and effect.
(hh) There
is
and has been no failure on the part of the Company to comply in all material
respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002, as amended,
and
the rules and regulations promulgated by the Commission and the American Stock
Exchange thereunder (the “Xxxxxxxx-Xxxxx Act”). The Company has taken all
necessary actions to ensure that it is in compliance with all provisions of
the
Xxxxxxxx-Xxxxx Act that are in effect and with which the Company is required
to
comply and is actively taking steps to ensure that it will be in compliance
with
other provisions of the Xxxxxxxx-Xxxxx Act not currently in effect or which
will
become applicable to the Company.
(ii) The
Company has established and maintains “disclosure controls and procedures” (as
defined in Rules 13a-14(c) and 15d-14(c) under the Exchange Act); the Company’s
“disclosure controls and procedures” are reasonably designed to ensure that all
information (both financial and non-financial) required to be disclosed by
the
Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the rules and regulations of the Exchange Act, and that all such information
is accumulated and communicated to the Company’s management as appropriate to
allow timely decisions regarding required disclosure and to make the
certifications of the Chairman and Chief Financial Officer of the Company
required under the Exchange Act with respect to such reports.
(jj) There
is
and has been no failure on the part of the Company or any of the Company’s
officers or directors, in their capacities as such, to comply with (as and
when
applicable), and immediately following the Effective Date the Company will
be in
compliance with, (a) Part 8 of the American Stock Exchange’s “AMEX Company
Guide,” as amended and (b) all other provisions of the American Stock Exchange
corporate governance requirements set forth in the AMEX Company Guide, as
amended.
(kk) The
operations of the Company are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws
is
pending or, to the Company’s knowledge, threatened.
(ll) Neither
the Company nor any director, officer, agent, employee or affiliate of the
Company is currently subject to any U.S. sanctions administered by the Office
of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered
by
OFAC.
(mm) None
of
the Company, the Initial Stockholders or, to the knowledge of the Company,
any
officer or director of the Company has violated: (a) the Bank Secrecy Act,
as
amended, (b) the Money Laundering Laws, or (c) the Uniting and Strengthening
of
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations
promulgated under any such law, or any successor law.
(nn) None
of
the Company, the Initial Stockholders, or, to the knowledge of the Company,
any
director or officer of the Company is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the Company has
conducted its businesses in compliance with the FCPA and has instituted and
maintains policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(oo) No
relationship, direct or indirect, exists between or among any of the Company
and
any director, officer, shareholder, special advisor, customer or supplier of
the
Company which is required by the Act or the Exchange Act to be described in
the
Registration Statement or the Prospectus which is not described as required.
There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness
by
the Company to or for the benefit of any of the officers or directors of the
Company or any of their respective family members, except as disclosed in the
Registration Statement and the Prospectus. The Company has not extended or
maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any director or officer
of
the Company.
(pp) The
statistical, industry-related and market-related data included in the
Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the sources from
which they are derived.
(qq) Neither
the Company nor any of its affiliates, has taken or will take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company to facilitate the
sale or resale of the Securities.
(rr) The
Company is not nor, after giving effect to the offering and sale of the
Securities contemplated hereunder and the application of the net proceeds from
such sale as described in the Prospectus, will the Company be an “investment
company” within the meaning of such term under the Investment Company Act of
1940 as amended (the “1940 Act”), and the rules and regulations of the
Commission thereunder.
(ss) The
Initial Stockholders have waived any and all rights and claims they may have
with respect to the Founder Shares to participate in any distributions occurring
upon the Company’s failure to consummate a Business Combination.
(tt) The
Company has not, directly or indirectly, distributed and will not distribute
any
offering material in connection with the offering and sale of the Units other
than any Preliminary Prospectus and the Prospectus.
(uu) There
are
no relationships or related-party transactions involving the Company or any
other person required to be described in the Registration Statement or the
Prospectus which have not been described as required.
(vv) The
Company has not offered, or caused the Underwriters or their affiliates to
offer, Securities to any person with the specific intent to unlawfully influence
(i) a customer or supplier of the Company to alter the customer’s or supplier’s
level or type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its
products.
(ww) The
execution, delivery, and performance by the Company of this Agreement, the
Warrant Agreement, the Trust Agreement, the Subscription Agreements, the Warrant
Purchase Agreement, the Registration Rights Agreement and the Services
Agreement, the consummation by the Company of the transactions herein and
therein contemplated and the compliance by the Company with the terms hereof
and
thereof do not and will not, with or without the giving of notice or the lapse
of time or both: (i) result in a breach of, or conflict with any of the terms
and provisions of, or constitute a default under, or result in the creation,
modification, termination or imposition of any lien, charge or encumbrance
upon
any property or assets of the Company pursuant to the terms of any agreement
or
instrument to which the Company is a party except pursuant to the Trust
Agreement; (ii) result in any violation of the provisions of the Certificate
of
Incorporation or the Bylaws; or (iii) violate any existing 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
properties or business.
(xx) To
the
knowledge of the Company, all information contained in the questionnaires
completed by the Initial Stockholders and the directors, officer and special
advisors and provided to the Representative as an exhibit to his or her Insider
Letter is true and correct in all material respects and the Company has not
become aware of any information which would cause the information disclosed
in
the questionnaires completed by each Initial Stockholder, director, officer
and
special advisor to become inaccurate and incorrect in any material respect.
(yy) Except
as
described in the Statutory Prospectus and the Prospectus, there are no claims,
payments, arrangements, contracts, agreements or understandings relating to
the
payment of a brokerage commission or finder’s, consulting, origination or
similar fee by the Company or any Initial Stockholder with respect to the sale
of the Securities hereunder or any other arrangements, agreements or
understandings of the Company or any Initial Stockholder that may affect the
Underwriters’ compensation, as determined by the FINRA.
(zz) 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) any
FINRA member, or (iii) any person or entity that has any direct or indirect
affiliation or association with any FINRA member, within the 12 months prior
to
the Effective Date.
(aaa) None
of
the net proceeds of the offering will be paid by the Company to any
participating FINRA member or its affiliates, except as specifically authorized
herein or except as may be paid in connection with an initial Business
Combination and/or one or more other transactions after the initial Business
Combination, including without limitation in connection with the payment of
investment banking fees, fees in connection with fairness opinions and the
like.
(bbb) Based
on
questionnaires distributed to such persons, no officer, director or any
beneficial owner of the Company’s unregistered securities has any direct or
indirect affiliation or association with any FINRA member. The Company will
advise the Representative if it learns that any officer or director is or
becomes an affiliate or associated person of an FINRA member participating
in
the offering.
(ccc) Upon
delivery and payment for the Firm Units on the Closing Date, the Company will
not be subject to Rule 419 under the Act and none of the Company’s outstanding
securities will be deemed to be a “xxxxx stock” as defined in Rule 3a-51-1 under
the Exchange Act.
(ddd) Except
as
disclosed in the Registration Statement and the Prospectus, no Initial
Stockholder, employee, officer or director of the Company is subject to any
non-competition or non-solicitation agreement with any employer or prior
employer which could materially adversely affect his ability to be an Initial
Stockholder, employee, officer and/or director of the Company.
(eee) The
Company does not have any specific Business Combination under consideration
and
the Company has not (nor has anyone on its behalf) contacted any prospective
acquisition candidate or had any discussions, formal or otherwise, with respect
to such a transaction.
(fff)
The
Company has not prepared or used an Issuer Free Writing Prospectus, as such
term
is defined in Rule 433 under the Act in connection with the offering of the
Units.
2. Purchase,
Sale and Delivery of the Firm Units.
(a) On
the
basis of the representations, warranties and covenants herein contained,
and
subject to the conditions herein set forth, the Company agrees to sell to
the
several Underwriters and the Underwriters agree severally and not jointly,
to
purchase, at a price of $7.76 per unit (including $0.32 per Firm Unit to
be held
in the Trust Account as deferred discount and commissions, the “Deferred
Underwriting Discount”), the number of Firm Units set forth on Schedule I
subject to adjustments in accordance with Section 13 hereof.
(b) Payment
for the Firm Units to be sold hereunder is to be made in Federal (same day)
funds against delivery of certificates therefor to the Representative for the
several accounts of the Underwriters. Such payment and delivery are to be made
through the facilities of The Depository Trust Company, New York, New York
(“DTC”) at 10:00 a.m., New York time, on the third business day after the date
of this Agreement (or the fourth business day following the date of this
Agreement, if the Registration Statement is declared effective after 4:30 p.m.,
New York time) or at such other time and date not later than five business
days
thereafter as the Representative and the Company shall agree upon, such time
and
date being herein referred to as the “Closing Date.” (As used herein, “business
day” means a day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and are not permitted by law
or
executive order to be closed.) Payment for the Firm Units shall be made as
follows: $73,925,000 of the proceeds received by the Company for the Firm Units,
together with $3,200,000 of Deferred Underwriting Discount shall be deposited
in
the Trust Account pursuant to the terms of the Trust Agreement and the remaining
$475,000 of the proceeds received by the Company for the Firm Units shall be
paid to the order of the Company upon delivery to the Representative of
certificates (in form and substance satisfactory to the Representative)
representing the Firm Units (or through the facilities of DTC) for the several
accounts 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
will permit the Representative to examine and package the Firm Units for
delivery at least one full business day prior to the Closing Date.
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters to purchase the Option Units at the
price
per unit as set forth in the first paragraph of this Section 2. The option
granted hereby may be exercised in whole or in part by giving written notice
(i)
at any time before the Closing Date and/or (ii)
only
once thereafter within 45 days after the date of this Agreement, by the
Representative, to the Company setting forth the number of Option Units
as to
which the Underwriters are exercising the option and the time and date
at which
such certificates are to be delivered. The time and date at which certificates
for Option Units are to be delivered shall be determined by the Representative
but shall not be earlier than three nor later than 10 full business days
after
the exercise of such option, nor in any event prior to the Closing Date
(such
time and date being herein referred to as the “Option Closing Date”). If the
date of exercise of the option is three or more days before the Closing
Date,
the notice of exercise shall set the Closing Date as the Option Closing
Date.
The option with respect to the Option Units granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Units by the Underwriters.
The Representative may cancel such option at any time prior to its expiration
by
giving written notice of such cancellation to the Company. To the extent,
if
any, that the option is exercised, payment for the Option Units shall be
made on
the Option Closing Date in Federal (same day funds) through the facilities
of
DTC drawn to the order of the Company. Payment for the Option Units shall
be
made on the Option Closing Date by wire transfer in Federal (same day)
funds, as
follows: $7.76 per Option Unit sold shall be deposited in the Trust Account
pursuant to the Trust Agreement (including $0.32 per Option Unit to be
held in
the Trust Account as Deferred Underwriting Discount) upon delivery to the
Representative of certificates (in form and substance satisfactory to the
Representative) representing the Option Units sold (or through the facilities
of
DTC) for the several accounts of the Underwriters.
3. Offering
by the Underwriters.
It
is
understood that the Underwriters are to make a public offering of the Firm
Units
as soon as the Representative deems it advisable to do so. The Firm Units are
to
be initially offered to the public at the initial public offering price set
forth in the Prospectus.
4. Covenants
of the Company.
The
Company covenants and agrees with each of the Underwriters that:
(a) The
Company will (A) prepare and timely file with the Commission under Rule 424(b)
under the Act a Prospectus in a form approved by the Representative containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rules 430A and 430C under the Act, (B) not file any
amendment to the Registration Statement or distribute an amendment or supplement
to the Prospectus of which the Representative shall not previously have been
advised and furnished with a copy or to which the Representative shall have
reasonably objected in writing or which is not in compliance with the Rules
and
Regulations and (C) file on a timely basis all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to the termination
of the offering of the Securities by the Underwriters.
(b) The
Company will advise the Representative promptly (A) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(B) of receipt of any comments from the Commission, (C) of any request of
the Commission for amendment of the Registration Statement or for supplement
to
the Prospectus or for any additional information and (D) of the issuance by
the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, or of the institution of any proceedings for
that
purpose or pursuant to Section 8A of the Act. The Company will use its best
efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(c) The
Company will cooperate with the Underwriters in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions as the
Representative may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service
of
process in any jurisdiction where it is not now so qualified or required to
file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representative may
reasonably request for distribution of the Securities.
(d) The
Company will deliver to, or upon the order of, the Underwriters, from time
to
time, as many copies of any Preliminary Prospectus as the Representative may
reasonably request. The Company will deliver to, or upon the order of, the
Representative during the period when delivery of a Prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Act) (the
“Prospectus Delivery Period”) is required under the Act, as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Representative may reasonably request. The Company will deliver to the
Representative, at or before the Closing Date, signed copies of the Registration
Statement and all amendments thereto including all exhibits filed therewith,
and
will deliver to the Representative such number of copies of the Registration
Statement (including such number of copies of the exhibits filed therewith
that
may reasonably be requested), and of all amendments thereto, as the
Representative may reasonably request.
(e) The
Company will comply with the Act and the Rules and Regulations, and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit
the completion of the distribution of the Units as contemplated in this
Agreement and the Prospectus. If during the period in which a prospectus (or,
in
lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required by law to be delivered by the Underwriters or any dealer, any event
shall occur as a result of which, in the judgment of the Company or in the
reasonable opinion of the Representative, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or, if it
is
necessary at any time to amend or supplement the Prospectus to comply with
any
law, the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(f) If
the
General Disclosure Package is being used to solicit offers to buy the Units
at a
time when the Prospectus is not yet available to prospective purchasers and
any
event shall occur as a result of which, in the judgment of the Company or in
the
reasonable opinion of the Representative, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or to make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is necessary
at
any time to amend or supplement the General Disclosure Package to comply with
any law, the Company promptly will prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package.
(g) The
Company will make generally available to its security holders, as soon as it
is
practicable to do so, but in any event not later than 15 months after the
Effective Date, an earnings statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months beginning after
the
Effective Date, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 under the Act and will advise the
Representative in writing when such statement has been so made
available.
(h) Prior
to
the Closing Date, the Company will furnish to the Representative, as soon as
they have been prepared by or are available to the Company, a copy of any
unaudited interim financial statements of the Company for any period subsequent
to the period covered by the most recent financial statements appearing in
the
Registration Statement and the Prospectus.
(i) The
Company shall, on the date hereof, retain its registered independent certified
public accountants to audit the financial statements of the Company as of the
Closing Date (the “Audited Financial Statements”) reflecting the receipt by the
Company of the proceeds of the sale of the Underwritten Securities. As soon
as
the Audited Financial Statements become available, the Company shall immediately
file a Current Report on Form 8-K with the Commission, which Report shall
contain the Company’s Audited Financial Statements. Additionally, upon the
Company’s receipt of the proceeds from the exercise of all or any portion of the
option provided for in Section 2(c) hereof, the Company shall immediately file
a
Current Report on Form 8-K with the Commission, which report shall disclose
the
Company’s sale of the Option Securities and its receipt of the proceeds
therefrom.
(j) For
a
period of at least five (5) years from the Effective Date or until such earlier
time that the Company is required to be liquidated, the Company, at its expense,
shall cause its regularly engaged registered independent certified public
accountants to review (but not audit) the Company’s financial statements for
each of the first three fiscal quarters of each year prior to the announcement
of quarterly financial information, the filing of the Company’s Form 10-Q
quarterly report and the mailing, if any, of quarterly financial information
to
stockholders.
(k) The
Company hereby agrees that until the Company consummates a Business Combination,
it shall not issue any shares of Common Stock or any options or other securities
convertible into Common Stock, or any shares of preferred stock which
participate in any manner in the Trust Account or which vote as a class with
the
Common Stock on the Business Combination.
(l) The
Company will use its best efforts to effect and maintain the listing of the
Securities on the American Stock Exchange. For a period of at least five (5)
years from the Effective Date, or until such earlier time upon which the Company
is required to be liquidated, the Company will use its best efforts to maintain
the registration of the Units, Common Stock and Warrants under the provisions
of
the Exchange Act. The Company will not deregister the Units, Common Stock and
Warrants under the Exchange Act without the prior written consent of the
Representative.
(m) The
Company shall apply the net proceeds of its sale of the Securities as set forth
in the Registration Statement and the Prospectus and shall file such reports
with the Commission with respect to the sale of the Securities and the
application of the proceeds therefrom as may be required in accordance with
Rule
463 under the Act.
(n) The
Company shall not invest, or otherwise use the proceeds received by the Company
from its sale of the Securities in such a manner as would require the Company
or
any of the Subsidiaries to register as an investment company under the 0000
Xxx.
(o) The
Company will maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Common Stock.
(p) The
Company will not take, directly or indirectly, any action designed to cause
or
result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any securities
of
the Company.
(q) In
no
event will the fees payable under the Services Agreement be more than $7,500
per
month in the aggregate.
(r) Except
as
set forth in this paragraph 4(r), the Company shall not pay any Initial
Stockholder or any of their affiliates any fees or compensation from the
Company, for services rendered to the Company prior to, or in connection with,
the consummation of a Business Combination; provided that the Initial
Stockholders shall be entitled to reimbursement from the Company for their
out-of-pocket expenses incurred in connection with seeking and consummating
a
Business Combination.
(s) 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.
(t) As
soon
as legally required to do so, the Company and its directors and officers, in
their capacities as such, shall take all actions necessary to comply with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including
Section 402 related to loans and Sections 302 and 906 related to
certifications.
(u) The
Company and any of the Company’s directors or officers, in their capacities as
such, shall take all actions necessary to comply with any provision of
(i) Part 8 of the AMEX Company Guide and (b) all other provisions of
the American Stock Exchange corporate governance requirements set forth in
the
AMEX Company Guide.
(v) The
Company shall not take any action or omit to take any action that would cause
the Company to be in breach or violation of its Certificate of Incorporation,
as
amended, or Bylaws, as amended.
(w) Prior
to
the consummation of a Business Combination or the liquidation of the Trust
Account, the Company shall not issue any shares of Common Stock, Warrants or
any
options or other securities convertible into Common Stock, or any shares of
preferred stock which participate in any manner in the Trust Account or which
vote as a class with the Common Stock on a Business Combination.
(x) The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination.
(y) The
Company hereby agrees that prior to commencing its due diligence investigation
of any operating business which the Company seeks to acquire for its initial
Business Combination (“Target Business”) or obtaining the services of any vendor
or service provider or other entity, it will use its best efforts to cause
the
Target Business or vendor or service provider or other entity with which the
Company executes an agreement to execute a waiver letter in the form attached
hereto as Exhibit A.
(z) Upon
the
consummation of the initial Business Combination, the Company will pay to
the
Underwriter the Deferred Underwriting Discount, less $0.32 per share held
by
holders of the Common Stock issued as part of the Units in this offering
(“IPO
Shares”) who exercised their conversion rights. Payment of the Deferred
Underwriting Discount will be made out of the proceeds of this offering held
in
the Trust Account. The Underwriters shall have no claim to payment of any
interest earned on the portion of the proceeds held in the Trust Account
representing the Deferred Underwriting Discount. If the Company fails to
consummate its initial Business Combination within the required time period
set
forth in the Registration Statement, the Deferred Underwriting Discount will
not
be paid to the Underwriters and will, instead, be included in the liquidation
distribution of the proceeds held in the Trust Account made to the holders
of
the IPO Shares. In connection with any such liquidation distribution, the
Underwriters will forfeit any rights or claims to the Deferred Underwriting
Discount, including any accrued interest thereon.
(aa) 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 merger candidate or
to
provide any other merger and acquisition services, the Company will provide
the
following to the FINRA and the Representative prior to the consummation of
the
Business Combination: (i) complete details of all such services and copies
of agreements governing such services; and (ii) justification as to why the
person or entity providing the merger and acquisition 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 2710 of the 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 stockholder approval for
the
Business Combination. The
Company will not engage any FINRA member to assist the Company in identifying
a
merger partner or a business opportunity in connection with the Company’s
initial Business Combination without submitting to FINRA a copy of any
agreements relating to the services to be provided and a statement as to
the
compensation to be received by such member for providing such
services.
5. Costs
and Expenses.
(a) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission
of
the Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, the Prospectus and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus,
the
Prospectus and all amendments or supplements to any of them, as may, in each
case, be reasonably requested for use in connection with the offering and sale
of the Securities; (iii) the preparation, printing, authentication, issuance
and
delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities;
(iv)
the printing (or reproduction) and delivery of this Agreement and all other
agreements or documents printed (or reproduced) and delivered in connection
with
the offering of the Securities; (v) the registration of the Securities under
the
Exchange Act and the listing of the Securities on the American Stock Exchange;
(vi) any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings required
to
be made with FINRA (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives, but not the Representative or its representatives, in
connection with “road show” presentations; (ix) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses incident
to the performance by the Company of its obligations hereunder.
(b) If
this
Agreement shall not be consummated because the conditions in Section 6 hereof
are not satisfied, or because this Agreement is terminated by the Underwriters
pursuant to Section 10(a)(i) hereof, or by reason of any failure, refusal
or inability on the part of the Company to perform any undertaking or satisfy
any condition of this Agreement or to comply with any of the terms hereof on
its
part to be performed, unless such failure, refusal or inability is due primarily
to the default or omission of the Underwriters, the Company shall reimburse
the
Underwriters for reasonable documented out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred in connection with
investigating, marketing and proposing to market the Units or in contemplation
of performing their obligations hereunder; but the Company shall not in any
event be liable to the Underwriters for damages on account of loss of
anticipated profits from the sale by it of the Units.
6. Conditions
of Obligations of the Underwriters.
The
obligation of the Underwriters to purchase the Firm Units on the Closing Date
and the Option Units, if any, on the Option Closing Date are subject to the
accuracy, as of the Applicable Time, the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and the Prospectus shall have been filed as required by Rules
424, 430A, 430C or 433 under the Act, as applicable, within the time period
prescribed by, and in compliance with, the Rules and Regulations, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representative and complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from
time
to time, shall have been issued and no proceedings for that purpose or pursuant
to Section 8A under the Act shall have been instituted or, to the knowledge
of
the Company, shall be contemplated or threatened by the Commission and no
injunction, restraining order or order of any nature by a Federal or state
court
of competent jurisdiction shall have been issued which would prevent the
issuance of the Units.
(b) The
Representative shall have received on the Closing Date or the Option Closing
Date, as the case may be, the opinion of Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and
Xxxxx, P.C., counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Representative (and stating
that it may be relied upon by counsel to the Underwriters) to the effect
that:
(i)
The
Company has been duly incorporated and is validly existing as a corporation
in
corporate good standing under the laws of the State of Delaware, and has the
corporate power and authority to own or lease, as the case may be, its property
and to conduct the business as described in the Registration Statement and
the
Prospectus, and to execute, deliver and perform this Agreement, the Trust
Agreement and the Warrant Agreement. The Company is duly qualified to do
business as a foreign corporation and is in good standing in all jurisdictions
in which the conduct of its business requires such qualifications.
(ii)
Each
of
this Agreement, the Warrant Agreement, the Warrants, the Private Placement
Warrants, the Registration Rights Agreement, the Warrant Purchase Agreement,
the
Subscription Agreements, the Stock Escrow Agreement, the Warrant Escrow
Agreement and the Trust Agreement have been duly authorized, executed and
delivered by the Company.
(iii)
The
authorized and outstanding capital stock of the Company is as set forth in
the
Statutory Prospectus and the Prospectus. The offers and sales of the outstanding
Common Stock and the Private Placement Warrants were at all relevant times
either registered under the Act and the applicable state securities or Blue
Sky
Laws or exempt from such registration requirements. All issued and outstanding
shares of Common Stock of the Company are duly authorized, have been validly
issued and are fully paid and non-assessable.
(iv)
The
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
Certificate of Incorporation or Bylaws of the Company 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 Certificate of
Incorporation or Bylaws of the Company.
(v)
The
Common Stock included in the Firm Units has been duly authorized and, when
issued and paid for by the Underwriters pursuant to this Agreement, will be
validly issued, fully paid and nonassessable. The shares of Common Stock
issuable upon exercise of the Warrants and the Private Placement Warrants have
been duly authorized and, when issued and paid for pursuant to the Warrants
or
the Private Placement Warrants, as the case may be, will be validly issued,
fully paid and nonassessable.
(vi)
The
Warrants, when issued and paid for by the Underwriters pursuant to this
Agreement, and the Private Placement Warrants, when issued and paid for pursuant
to the Warrant Purchase Agreement, will constitute valid and binding obligations
of the Company to issue and sell, upon exercise thereof and payment therefor,
the number and type of securities of the Company called for thereby and will
be
enforceable against the Company in accordance with their terms subject to
customary exceptions. The form of certificate representing the Common Stock
filed as an exhibit to the Registration Statement is in due and proper form,
satisfying the applicable requirements of the DGCL, the Certificate of
Incorporation, Bylaws and the applicable rules of the American Stock
Exchange.
(vii)
The
execution, delivery and performance of the Warrants and the Private Placement
Warrants have been duly authorized by all necessary corporate action on the
part
of the Company.
(viii)
Each
of
this Agreement, the Warrant Agreement, the Warrants, the Private Placement
Warrants, the Registration Rights Agreement, the Warrant Purchase Agreement,
the
Subscription Agreements, the Stock Escrow Agreement, the Warrant Escrow
Agreement and the Trust Agreement constitutes a valid and binding agreement
of
the Company enforceable against the Company in accordance with its terms subject
to customary exceptions. The holders of outstanding shares of capital stock
of
the Company are not entitled to preemptive rights to subscribe for the
Securities.
(ix)
No
consent, approval, authorization or order of, or filing with, any governmental
agency, public body or any court of the State of New York, the State of Delaware
or of the United States of America is required under New York Law, the DGCL
or
Federal Law for the execution, delivery or performance of this Agreement, the
Warrant Agreement, the Warrants, the Private Placement Warrants, the
Registration Rights Agreement, the Warrant Purchase Agreement, the Subscription
Agreements, the Stock Escrow Agreement, the Warrant Escrow Agreement and the
Trust Agreement by the Company, except (A) such as may be required under
state securities laws or (B) for the filing of the Registration Statement
with the Commission and the receipt of the order of the Commission declaring
such Registration Statement effective (as noted in paragraph (xv) below, such
counsel has been informed orally by the Commission that it has declared the
Registration Statement effective).
(x)
To
such
counsel’s knowledge, without any independent investigation or database or third
party search, there is no action, suit or proceeding by or before any court
or
other governmental agency, authority or body or any arbitrator pending or
overtly threatened against the Company or its properties by a third party of
a
character required to be disclosed in the Registration Statement or the
Prospectus that is not disclosed in the Registration Statement or the Prospectus
as required by the Act and the rules thereunder. To such counsel’s knowledge,
there is no indenture, contract, lease, mortgage, deed of trust, note agreement,
loan or other agreement or instrument of a character required to be filed as
an
exhibit to the Registration Statement, which is not filed as required by the
Act
and the rules thereunder.
(xi)
The
execution, delivery and performance by the Company of this Agreement, the
Warrant Agreement, the Warrants, the Private Placement Warrants, the
Registration Rights Agreement, the Warrant Purchase Agreement, the Subscription
Agreements, the Stock Escrow Agreement, the Warrant Escrow Agreement or the
Trust Agreement and compliance by the Company with the provisions thereof and
the issuance and sale of the Securities pursuant to and in accordance with
the
provisions of this Agreement, the Warrants and the Private Placement Warrants
will not (i) result in a breach or default (or give rise to any right of
termination, cancellation or acceleration) under any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan or other agreement to which the
Company is a party or may be bound, and (ii) will not result in a breach or
violation of any of the provisions of the Certificate of Incorporation or
Bylaws, the DGCL or any federal Law or New York Law, or, to such counsel’s
knowledge, any judgment, order, writ, injunction or decree of any court or
other
tribunal of which such counsel is aware and that is applicable to the
Company.
(xii)
The
Registration Statement, as of its effective date, the Prospectus, as of its
date, and the Statutory Prospectus (other than the financial statements, the
notes thereto and the related schedules and other financial and statistical
information included therein or omitted therefrom, as to which such counsel
expresses no opinion) complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder.
(xiii) The
Securities and each agreement filed as an exhibit to the Registration Statement
conform in all material respects to the description thereof contained in the
Registration Statement and in the Prospectus. The descriptions in the
Registration Statement and in the Prospectus, insofar as such statements
constitute a summary of statutes, legal matters, contracts, documents or
proceedings referred to therein, fairly present in all material respects the
information required to be shown with respect to such statutes, legal matters,
contracts, documents and proceedings, and such counsel does not know of any
statutes or legal or governmental proceedings required to be described in the
Prospectus that are not described in the Registration Statement or the
Prospectus or included as exhibits to the Registration Statement that are not
described or included as required.
(xiv) Such
counsel has been informed by the Commission that the Registration Statement
was
declared effective under the Securities Act as of [____] p.m. EST on
[___________], 2007 (the “Time of Sale”). The Prospectus was filed with the
Commission in the manner and within the time period required by Rule 424(b)
under the Securities Act, on [______], 2007. To such counsel’s knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose or pursuant to Section 8A of the
Act
has been instituted or is pending or threatened by the Commission.
(xv) The
Company is not, and will not become, as a result of the consummation of the
transactions contemplated by this Agreement, and application of the net proceeds
therefrom as described in the Prospectus, required to register as an investment
company under the 1940 Act.
In
rendering such opinion Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C. may
rely
as to matters governed by the laws of states other than New York or federal
laws
on local counsel in such jurisdictions, provided that in each case Xxxxx Xxxxx
Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C. shall state that they believe that they
and
the Underwriters are justified in relying on such other counsel. In addition
to
the matters set forth above, such opinion shall also include a statement to
the
effect that nothing has come to the attention of such counsel which leads them
to believe that (i) the Registration Statement, at the time it became effective
under the Act (including the information deemed to be a part of the Registration
Statement at the time it became effective pursuant to Rules 430A and 430C under
the Act) and as of the Closing Date or the Option Closing Date, as the case
may
be, contained or contains an untrue statement of a material fact or omitted
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (ii) the General Disclosure
Package, as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (iii) the Prospectus, or any supplement thereto, on the
date it was filed pursuant to the Rules and Regulations and as of the Closing
Date or the Option Closing Date, as the case may be, contained or contains
an
untrue statement of a material fact or omitted or omits to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (except that such
counsel need express no view as to financial statements and schedules and other
financial data derived therefrom).
(c) The
Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel for
the
Underwriters, an opinion dated the Closing Date or the Option Closing Date,
as
the case may be, and addressed to the Representative, with respect to the
issuance and sale of the Securities, the Registration Statement, the Statutory
Prospectus and the Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(d) The
Representative shall have received, on each of the date hereof, the Closing
Date
and, if applicable, the Option Closing Date, a letter dated the date hereof,
the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to the Representative, of GGK confirming that it is
an
independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable Rules and Regulations and the PCAOB
and stating that, in their opinion, the financial statements and schedules
examined by them and included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act and the related Rules and Regulations; and containing
such other statements and information as is ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and
certain financial and statistical information contained in the Registration
Statement and the Prospectus.
(e) The
Representative shall have received on the Closing Date and, if applicable,
the
Option Closing Date, as the case may be, a certificate or certificates of the
Chairman and the Chief Financial Officer of the Company to the effect that,
as
of the Closing Date or the Option Closing Date, as the case may be, each of
them
severally represents as follows:
(i) The
Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement and no order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
has been issued, and no proceedings for such purpose or pursuant to Section
8A
of the Act have been instituted or are, to his or her knowledge, contemplated
or
threatened by the Commission;
(ii) The
representations and warranties of the Company contained in Section 1 hereof
are
true and correct as of the Closing Date or the Option Closing Date, as the
case
may be;
(iii) All
filings required to have been made pursuant to Rules 424, 430A or 430C under
the
Act have been made as and when required by such rules;
(iv) He
or she
has carefully examined the General Disclosure Package and, in his or her
opinion, as of the Applicable Time, the statements contained in the General
Disclosure Package did not contain any untrue statement of a material fact,
and
such General Disclosure Package did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading;
(v) He
or she
has carefully examined the Registration Statement and, in his or her opinion,
as
of the Effective Date, the Registration Statement and any amendments thereto
did
not contain any untrue statement of a material fact and did not omit to state
a
material fact necessary in order to make the statements therein not misleading,
and since the Effective Date, no event has occurred which should have been
set
forth in a supplement to or an amendment of the Prospectus which has not been
so
set forth in such supplement or amendment;
(vi) He
or she
has carefully examined the Prospectus and, in his or her opinion, as of its
date
and the Closing Date or the Option Closing Date, as the case may be, the
Prospectus and any amendments and supplements thereto did not contain any untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; and
(vii) Since
the
respective dates as of which information is given in the Registration Statement
and Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting
the
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company, whether or not arising
in
the ordinary course of business.
(f) The
Company shall have furnished to the Representative such further certificates
and
documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Representative may
reasonably have requested.
(g) The
Firm
Units and Option Units, if any, have been duly listed, subject to notice of
issuance, on the American Stock Exchange.
(h) On
the
Effective Date, the Company shall have delivered to the Representative executed
copies of the Trust Agreement, the Warrant Agreement, the Warrant Purchase
Agreement, the Services Agreement and each of the Insider Letters.
(i) The
entire $2,075,000 of proceeds from the sale of the Private Placement Warrants
shall have been deposited in the Trust Account in accordance with the terms
of
the Warrant Purchase Agreement.
(j) The
FINRA
has not raised any objection with respect to the fairness and reasonableness
of
the underwriting terms and arrangements.
The
opinions and certificates mentioned in this Agreement shall be deemed to be
in
compliance with the provisions hereof only if they are in all material respects
satisfactory to the Representative and to Xxxxxxx XxXxxxxxx LLP, counsel for
the
Representative.
If
any of
the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing, by
telephone or facsimile at or prior to the Closing Date or the Option Closing
Date, as the case may be.
In
such
event, the Company and the Underwriters shall not be under any obligation to
each other (except to the extent provided in Sections 5 and 8
hereof).
7. Conditions
of the Obligations of the Company.
The
obligations of the Company to sell and deliver the portion of the Units required
to be delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, as the case
may
be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
8. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein; it being understood and agreed that the
only
such information so furnished consists of the information described as such
in
Section 12 herein. This indemnity agreement is in addition to any liability
which the Company may otherwise have.
(b) Each
of
the Underwriters agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
or
has signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the
Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity; it being understood and agreed that the only such information so
furnished consists of the information described as such in Section 12
herein. This indemnity agreement will be in addition to any liability which
any
Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above unless and
to
the extent it did not otherwise learn of such action and such failure results
in
the forfeiture by the indemnifying party of substantial rights and defenses
and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided
in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party’s choice at the indemnifying party’s expense
to represent the indemnified party in any action for which indemnification
is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i)
the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual
or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action or (iv) the indemnifying party shall authorize the indemnified
party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in
respect of which indemnification or contribution may be sought hereunder
(whether or not any of the indemnified parties is an actual or potential party
to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In
the
event that the indemnity provided in paragraph (a), (b) or (c) of this Section
8
is unavailable to or insufficient to hold harmless an indemnified party for
any
reason, the Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
the
same) (collectively “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in
any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for
any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also
the relative fault of the Company on the one hand and of the Underwriters on
the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received
by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission
or
alleged omission to state a material fact relates to information provided by
the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange
Act
and each director, officer, employee and agent of an Underwriter shall have
the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) In
any
proceeding relating to the Registration Statement, any Preliminary Prospectus,
the Prospectus or any supplement or amendment thereto, each party against whom
contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join it as an additional defendant in any
such
proceeding in which such other contributing party is a party.
(f) Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 8 shall be
paid by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain operative
and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any persons controlling the Company,
(ii)
acceptance of any Securities and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter, or any person
controlling any Underwriter, or to the Company, its directors or officers,
or
any person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
8.
9. Notices.
All
communications hereunder shall be in writing and, except as otherwise provided
herein, will be mailed, delivered or telecopied and confirmed as follows: if
to
the Underwriters, to SunTrust Xxxxxxxx Xxxxxxxx, Inc., 000 Xxxxxxxxx Xxxx,
Xxxxx
0000, X/X 000, Xxxxxxx, XX 00000; Attention: Xxxxxxx X. X. Xxxxxxxx, Senior
Vice
President and Deputy General Counsel, with a copy to Xxxxxxx XxXxxxxxx LLP,
000
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxx, Esq.; if to
the
Company, to Secure America Acquisition Corporation, 0000 Xxxxx Xxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxxxx, XX 00000-0000, with a copy to Xxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxx and Xxxxx, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxx X. Xxxxxxx, Esq.
10. Termination.
This
Agreement may be terminated by the Representative by notice to the Company
(a) at any time prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to Option Units) if any
of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package
and the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial
or
otherwise) or prospects of the Company, whether or not arising in the ordinary
course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or international
calamity or crisis if the effect of such outbreak, escalation, declaration,
emergency, calamity or crisis on the financial markets of the United States
would, in the Representative’s judgment, make it impracticable or inadvisable to
market the Units or to enforce contracts for the sale of the Units, (iii)
any
material change in economic or political conditions, if the effect of such
change on the financial markets of the United States would, in the
Representative’s judgment, make it impracticable or inadvisable to market the
Units or to enforce contracts for the sale of the Units, (iv) suspension of
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices (other
than
limitations on hours or numbers of days of trading) for securities on any
such
exchange or market, (v) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or
other
governmental authority which in the Representative’s opinion materially and
adversely affects or may materially and adversely affect the business or
operations of the Company, (vi) the declaration of a banking moratorium by
United States, New York State or Georgia State authorities, (vii) the
suspension of trading of the Company’s Securities by the American Stock
Exchange, the Commission, or any other governmental authority or (viii) the
taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in the Representative’s reasonable opinion has
a material adverse effect on the securities markets in the United States;
or
(b) as provided in Section 6 or Section 13 of this
Agreement.
11. Successors.
This
Agreement has been and is made solely for the benefit of the Underwriters and
the Company and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Securities from the Underwriters shall be deemed a
successor or assign merely because of such purchase.
12. Information
Provided by Underwriter.
The
Company and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company for inclusion
in
the Registration Statement, any Preliminary Prospectus or the Prospectus
consists of the information set forth in the fourth paragraph under the caption
“Underwriting” in the Prospectus.
13. Default
By Underwriters.
If
on the
Closing Date or the Option Closing Date, as the case may be, any Underwriter
shall fail to purchase and pay for the portion of the Units which such
Underwriter has agreed to purchase and pay for on such date (otherwise than
by
reason of any default on the part of the Company), the Representative shall
use
its reasonable efforts to procure within 36 hours thereafter one or more of
the
other Underwriters, or any others, to purchase from the Company such amounts
as
may be agreed upon and upon the terms set forth herein, the Units which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours the Representative shall not have procured such other Underwriters, or
any
others, to purchase the Units agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of Units with
respect to which such default shall occur does not exceed 10% of the Units
to be
purchased on the Closing Date or the Option Closing Date, as the case may be,
the other Underwriters shall be obligated, severally, in proportion to the
respective numbers of Units which they are obligated to purchase hereunder,
to
purchase the Units which such defaulting Underwriter or Underwriters failed
to
purchase, or (b) if the aggregate number of Units with respect to which such
default shall occur exceeds 10% of the Units to be purchased on the Closing
Date
or the Option Closing Date, as the case may be, the Company or the
Representative will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 13, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as the
Representative may determine in order that the required changes in the
Registration Statement, the General Disclosure Package or in the Prospectus
or
in any other documents or arrangements may be effected. The term “Underwriter”
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 13 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
14. Miscellaneous.
The
reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any termination of
this
Agreement, (b) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Company or its directors
or officers, and (c) delivery of and payment for the Securities under this
Agreement.
The
Company hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal
and
not as an agent or fiduciary of the Company and (c) the Company’s engagement of
the Underwriters in connection with the offering and the process leading up
to
the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its
own
judgments in connection with the offering (irrespective of whether any of the
Underwriters has advised or is currently advising the Company on related or
other matters). The Company agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction
or
the process leading thereto.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
The
Company hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out
of
or relating to this Agreement or the transactions contemplated
hereby
This
Agreement shall be governed by, and construed in accordance with, the law of
the
State of New York, including, without limitation, Section 5-1401 of the New
York
General Obligations Law.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicates hereof, whereupon it will become a
binding agreement among the Company and the several Underwriters in accordance
with its terms.
| Very truly yours, | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
The
foregoing Underwriting Agreement
is
hereby
confirmed and accepted as
of
the
date first above written.
SUNTRUST
XXXXXXXX XXXXXXXX, INC.,
As
Representative of the Several
Underwriters
listed on Schedule I
| By |
Authorized Officer |
| By |
Authorized Officer |
SCHEDULE
I
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
Xxxxxx
Xxxxxx & Co., Inc.
GunnAllen
Financial
Maxim
Group LLC
Total: 10,000,000
SCHEDULE
II
PRICE
AND OTHER TERMS OF THE OFFERING CONVEYED ORALLY
Exhibit
A
FORM
OF
WAIVER LETTER
[Letterhead
of prospective vendor or target business.]
0000
Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
[DATE]
Ladies
and Gentlemen:
We
understand that Secure America Acquisition Corporation (the “Company”) is a
recently organized blank check company formed for the purpose of acquiring
(an
“Initial Business Combination”) one or more businesses or assets. We further
understand that the Company’s sole assets consist of the cash proceeds of the
recent initial public offering (the “IPO”) and private placement of its
securities, and that substantially all of those proceeds have been deposited
in
a trust account with a third party (the “Trust Account”) for the benefit of the
Company, its public stockholders (as defined in the agreement governing the
Trust Account) and the underwriters of its IPO. The monies in the Trust Account
may be disbursed only (1) to the Company in limited amounts from time to time
(and in no event more than $1,400,000 in total) in order to permit the Company
to pay its operating expenses; (2) if the Company completes an initial business
combination, to certain dissenting public stockholders, to the underwriters
in
the amount of underwriting discounts and commissions they earned in the IPO
but
whose payment they have deferred, and then to the Company; and (3) if the
Company fails to complete an initial business combination within the allotted
time period and liquidates subject to the terms of the agreement governing
the
Trust Account, to the Company in limited amounts to permit the Company to pay
the costs and expenses of its liquidation and dissolution and then to the
Company’s public stockholders.
For
and
in consideration of the Company’s agreement to [engage our services][evaluate us
for purposes of consummating its Initial Business Combination], we hereby agree
to waive any right, title, interest or claim of any kind (any “Claim”) we have
or may have in the future in or to any monies in the Trust Account and not
to
seek recourse against the Trust Account or any funds distributed therefrom
(except amounts released to the Company as described in clause (1) of the
preceding paragraph) as a result of, or arising out of, any Claims against
the
Company in connection with contracts or agreements with the Company or in
connection with services performed for or products provided to the
Company.
This
letter shall be governed by and construed and enforced in accordance with the
laws of the State of New York. We hereby irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this letter agreement or any
Claim subject hereto.
| Very truly yours, | ||
| [NAME OF VENDOR/TARGET] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
