2,500,000 Units CHINA VANTAGEPOINT ACQUISITION COMPANY UNDERWRITING AGREEMENT
2,500,000
Units
______________,
0000
XxxxxXxxxXxxxxxx,
Inc.
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
China
VantagePoint Acquisition Company, a Cayman Islands company with limited
liability (the “Company”), hereby confirms its
agreement with EarlyBirdCapital, Inc. (the “Underwriter” or “EBC”) as follows:
1. Purchase and Sale of
Securities.
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1.1.
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Firm
Securities.
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1.1.1. Purchase of Firm
Units. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriter an aggregate of 2,500,000 units (the
“Firm Units”) of the
Company at a purchase price (net of discounts and commissions) of $5.79 per Firm
Unit. The Underwriter agrees to purchase from the Company the
2,500,000 Firm Units at a purchase price of $5.79 per Firm Unit.
1.1.2. The
Firm Units are to be offered initially to the public (the “Offering”) at the offering
price of $6.00 per Firm Unit. Each Firm Unit consists of one subunit
(“Subunit(s)”) and
one-half (1/2) warrant (“Warrant(s)”). Each
Subunit consists of one ordinary share of the Company, par value $.001 per share
(“Ordinary Share(s)”),
and one-half (1/2) Warrant. The Subunits and the Warrants included in
the Firm Units will not be separately transferable until 90 days after the
effective date (“Effective
Date”) of the Registration Statement (as defined in Section 2.1.1 hereof)
unless EBC informs the Company of its decision to allow earlier separate
trading, but in no event will EBC allow separate trading until the preparation
of an audited balance sheet of the Company reflecting receipt by the Company of
the proceeds of the Offering and the filing of a Current Report on Form 8-K by
the Company with the Securities and Exchange Commission (the “Commission”) which includes
such balance sheet. The Company will file the Current Report on Form
8-K promptly after, but in no event more than four (4) business days following,
the consummation of the Offering. The Ordinary Shares and Warrants
included in the Subunits shall not be separately transferable until consummation
by the Company of a Business Combination (as defined in Section 1.1.3
below).
EarlyBirdCapital,
Inc.
____________,
2011
Page 2 of
47
1.1.3. Each
whole Warrant shall entitle its holder to purchase one Ordinary Share for $5.00
per share during the period commencing on the later of the consummation by the
Company of its Business Combination (as defined below) and one year from the
Effective Date and terminating on the earlier of (i) the three-year anniversary
of the consummation of a Business Combination, (ii) the liquidation of the Trust
Account (defined below) if the Company is unable to consummate a Business
Combination by the Termination Date (as defined in Section 9.6.1) or (iii) upon
redemption of the Warrants. As used herein, the
term “Business
Combination” shall mean a merger, share exchange, asset acquisition, plan
of arrangement, recapitalization, reorganization or similar business combination
involving one or more entities, whether or not related, or the acquisition of
such entity or entities through the use of contractual
arrangements. The Company has the right to redeem the Warrants, in
whole but not in part, upon not less than thirty (30) days’ prior written notice
at a price of $0.01 per Warrant at any time while the Warrants are exercisable;
provided, however, that the last sale price of the Ordinary Shares has been at
least $8.50 for any twenty (20) trading days within a thirty (30) trading day
period ending on the third (3rd)
Business Day (defined below) prior to the day on which notice is
delivered. As used herein, the term “Business Day” shall mean any
day other than a Saturday, Sunday or any day on which national banks in New
York, New York are not open for business.
1.1.4. Payment and
Delivery. Delivery and payment for the Firm Units shall be made at
the offices of the Underwriter at 10:00 A.M., New York time, on the third
(3rd)
Business Day following the commencement of trading of the Firm Units, or at such
other place or earlier time as shall be agreed upon by the Underwriter and the
Company. The closing of the Offering is referred to herein as the “Closing” and the hour and date
of delivery and payment for the Firm Units is referred to herein as the “Closing Date.” Payment
for the Firm Units shall be made on the Closing Date through the facilities of
Depository Trust Company (“DTC”) by wire transfer in
Federal (same day) funds. An aggregate of $14,075,000 of the proceeds
received by the Company for the Firm Units shall be deposited into the trust
account (the “Trust
Account”) established by the Company for the benefit of the Public
Shareholders (as defined below), as described in the Registration Statement and
pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”) between the
Company and Continental Stock Transfer & Trust Company (“CST&T”). The
remaining proceeds (less commissions and actual expense payments or other fees
payable pursuant to this Agreement) shall be paid to the order of the Company
upon delivery to the Underwriter of certificates (in form and substance
reasonably satisfactory to the Underwriter) representing the Firm Units (or
through the facilities of DTC for the account of the Underwriter). The
Firm Units shall be registered in such name or names and in such authorized
denominations as the Underwriter may request in writing at least two (2)
Business Days prior to the Closing Date. The Company will permit the
Underwriter to examine and package the Firm Units for delivery at least one (1)
full Business Day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the
Underwriter for all the Firm Units. As used herein, the term “Public Shareholders” means the
holders of Subunits sold as part of the Units in the Offering or acquired in the
aftermarket, including any of the Initial Shareholders (as defined in Section
1.4.1 herein) to the extent they acquire such Subunits in the Offering or in the
aftermarket (and solely with respect to such Subunits).
EarlyBirdCapital,
Inc.
____________,
2011
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1.2. Over-Allotment
Option
1.2.1. The
Underwriter shall have the option (the “Over-Allotment Option”) to
purchase all or less than all of the additional 375,000 units (the “Option Units”) for the
purposes of covering any over-allotments in connection with the distribution and
sale of the Firm Units. Such Option Units shall be identical in all
respects to the Firm Units. The Firm Units and the Option Units are
hereinafter collectively referred to as the “Units,” and the Units, the
Subunits, the Ordinary Shares and the Warrants included in the Units and the
Ordinary Shares issuable upon exercise of the Warrants are hereinafter referred
to collectively as the “Public
Securities.” No Option Units shall be sold or delivered unless the
Firm Units previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Units, or any portion
thereof, may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by the
Underwriter to the Company. The purchase price to be paid for each Option Unit
(net of discounts and commissions) will be $5.79 per Option Unit.
1.2.2. Exercise of
Option. The Over-Allotment Option granted pursuant to Section
1.2.1 hereof may be exercised by the Underwriter as to all (at any time) or any
part (from time to time) of the Option Units within 45 days after the Effective
Date. The Underwriter will not be under any obligation to purchase
any Option Units prior to the exercise of the Over-Allotment
Option. The Over-allotment Option granted hereby may be exercised by
the giving of oral notice to the Company by the Underwriter, which must be
confirmed in accordance with Section 12.1 herein setting forth the number of
Option Units to be purchased and the date and time for delivery of and payment
for the Option Units (the “Option Closing Date”), which
will not be later than five (5) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the Underwriter,
at the offices of the Underwriter or at such other place as shall be agreed upon
by the Company and the Underwriter. Upon exercise of the
Over-Allotment Option, the Company will become obligated to convey to the
Underwriter, and, subject to the terms and conditions set forth herein, the
Underwriter will become obligated to purchase, the number of Option Units
specified in such notice.
1.2.3. Payment and
Delivery. Payment for the Option Units shall be made on the
Option Closing Date at the Underwriter’s election by wire transfer in Federal
(same day) funds or by certified or bank cashier’s check(s) in New York Clearing
House funds, payable as follows: $5.79 per Option Unit shall be
deposited in the Trust Fund pursuant to the Trust Agreement upon delivery to you
of certificates (in form and substance satisfactory to the Underwriter)
representing the Option Units (or through the facilities of DTC) for the account
of the Underwriter). The certificates representing the Option Units to be
delivered will be in such denominations and registered in such names as the
Underwriter requests not less than two full business days prior to the Closing
Date or the Option Closing Date, as the case may be, and will be made available
to the Underwriter for inspection, checking and packaging not less than one full
business day prior to such Closing Date.
EarlyBirdCapital,
Inc.
____________,
2011
Page 4 of
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1.3. Underwriter’s Purchase
Option. The Company hereby agrees to issue and sell to the
Underwriter (and/or its designees) on the Closing Date an option (“Underwriter’s Purchase
Option”) to purchase up to an aggregate of 175,000 units (the “Underwriter’s Units”) for an
aggregate purchase price of $100.00. The Underwriter’s Purchase Option
shall be exercisable whether for cash or on a cashless basis, in whole or in
part, commencing on the later of the consummation of a Business Combination (but
in no event will the Underwriter’s Purchase Option expire more than five years
from the Effective Date) or one year from the Effective Date and expiring on the
three-year anniversary of the consummation of a Business Combination at an
initial exercise price per Underwriter’s Unit of $6.60, which is equal to one
hundred ten percent (110%) of the initial public offering price of a Unit.
Delivery and payment for the Underwriter’s Purchase Option shall be made on the
Closing Date. On the Closing Date, the Company shall deliver to the
Underwriter, upon payment therefor, the Underwriter’s Purchase Option in the
name or names and in such denominations as the Underwriter may
request. The Underwriter’s Purchase Option, the Underwriter’s Units,
the Subunits (the “Underwriter’s Subunits”), the
Ordinary Shares (the “Underwriter’s Shares”) and the
Warrants (the “Underwriter’s
Warrants”) included in the Underwriter’s Units and the Ordinary Shares
issuable upon exercise of the Underwriter’s Warrants are hereinafter referred to
collectively as the “Underwriter’s
Securities.” The Public Securities and the Underwriter’s
Securities are hereinafter referred to collectively as the “Securities.”
1.4. Private Placements and
Warrant Offering.
1.4.1. Private Placement. The Company issued
to certain persons and entities referenced in Part II, Item 15 of the
Registration Statement (collectively, the “Initial Shareholders”), for
aggregate consideration of $25,000, 718,750 Ordinary Shares (the “Insider Shares”) in a private
placement intended to be exempt from registration under Section 4(2) of the
Securities Act of 1933, as amended (the “Act”). No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the sale of the Insider Shares. Except for
certain limited exceptions, the Insider Shares may not be sold, assigned or
transferred by the Initial Shareholders until the one-year anniversary of the
consummation of the Business Combination or the liquidation of the Trust Account
if the Company is unable to consummate a Business Combination by the Termination
Date. The Initial Shareholders shall have no right to any
distributions from the Trust Account with respect to any portion of the Insider
Shares in the event the Company fails to consummate a Business
Combination. The Initial Shareholders shall not have redemption
rights with respect to the Insider Shares (whether the Company engages in a
proxy solicitation to approve a Business Combination or whether the Company
engages in a tender offer).
EarlyBirdCapital,
Inc.
____________,
2011
Page 5 of
47
1.4.2. Warrant
Offering. Simultaneously with the Closing Date, the Company
will issue and sell pursuant to Subscription Agreements (as defined in Section
2.25.2 hereof) (the “Warrant
Offering”) an aggregate of 2,642,856 warrants (the “Warrant Offering
Warrants”). The Warrant Offering Warrants and the Ordinary
Shares issuable upon exercise of the Warrant Offering Warrants are hereinafter
referred to as the “Warrant
Offering Securities.” The Warrant Offering Warrants shall
consist of 1,500,000 Warrant Offering Warrants (the “Insider Warrants”) and
1,142,856 Warrant Offering Warrants (the “EBC/Third Party
Warrants”). The Insider Warrants and the Ordinary Shares
issuable upon exercise of the Insider Warrants are hereinafter referred to as
the “Insider
Securities.” The EBC/Third Party Warrants and the Ordinary
Shares issuable upon exercise of the EBC/Third Party Warrants are hereinafter
referred to as the “EBC/Third
Party Securities.” No underwriting discounts, commissions or
placement fees have been or will be payable in connection with the Warrant
Offering. None of the Warrant Offering Securities may be sold,
assigned or transferred (except to their permitted transferees) by the initial
holders thereof until the consummation of a Business Combination or the
liquidation of the Trust Account if the Company is unable to consummate a
Business Combination by the Termination Date.
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1.5.
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Working Capital; Trust
Account Proceeds.
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1.5.1. Working
Capital. Upon consummation of the Offering, $150,000 of the
offering proceeds will be released to the Company to fund the working capital
requirements of the Company.
1.5.2. Trust Account
Proceeds. Prior to the liquidation of the Trust Account in the event the
Company has not completed a Business Combination by the Termination Date, funds
may be released to the Company from the Trust Account in accordance with the
Trust Agreement to purchase Subunits and interest earned on the Trust Account
may be released to the Company from the Trust Account in accordance with the
Trust Agreement to (i) pay any taxes incurred by the Company and (ii) to fund
the Company’s working capital and general corporate requirements, all as more
fully described in the Prospectus.
2. Representations and
Warranties of the Company. The Company represents and warrants to
the Underwriter as follows:
EarlyBirdCapital,
Inc.
____________,
2011
Page 6 of
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2.1. Filing of Registration
Statement.
2.1.1. Pursuant to the
Act. The Company has filed with the Commission a registration
statement and an amendment or amendments thereto, on Form S-1 (File No.
333-170006), including any related preliminary prospectus (the “Preliminary Prospectus”,
including any prospectus that is included in the Registration Statement
immediately prior to the effectiveness of the Registration Statement), for the
registration of the Public Securities and the Underwriter’s Securities under the
Act, which registration statement and amendment or amendments have been prepared
by the Company in conformity with the requirements of the Act, and the rules and
regulations (the “Regulations”) of the
Commission under the Act. Except as the context may otherwise require,
such registration statement, as amended, on file with the Commission at the time
the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as a
part thereof or incorporated therein and all information deemed to be a part
thereof as of such time pursuant to Rule 430A of the Regulations), is
hereinafter called the “Registration Statement,” and
the form of the final prospectus dated the Effective Date included in the
Registration Statement (or, if applicable, the form of final prospectus
containing information permitted to be omitted at the time of effectiveness by
Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of
the Regulations), is hereinafter called the “Prospectus.” For
purposes of this Agreement, “Time of Sale”, as used in the
Act, means 5:00 p.m., New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared
preliminary prospectuses, dated __________, 2011, for distribution by the
Underwriter (together the “Statutory
Prospectus”). If the Company has filed, or is required
pursuant to the terms hereof to file, a registration statement pursuant to Rule
462(b) under the Act registering additional Securities of any type (a “Rule 462(b) Registration
Statement”), then, unless otherwise specified, any reference herein to
the term “Registration
Statement” shall be deemed to include such Rule 462(b) Registration
Statement. Other than a Rule 462(b) Registration Statement, which, if
filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the
Commission. All of the Public Securities have been registered under
the Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the Securities
Act with the filing of such Rule 462(b) Registration Statement. The
Registration Statement has been declared effective by the Commission on the date
hereof. If, subsequent to the date of this Agreement, the Company or
the Underwriter has determined that at the Time of Sale the Statutory Prospectus
included an untrue statement of a material fact or omitted a statement of
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and have agreed to
provide an opportunity to purchasers of the Firm Units to terminate their old
purchase contracts and enter into new purchase contracts, then the Statutory
Prospectus will be deemed to include any additional information available to
purchasers at the time of entry into the first such new purchase
contract.
2.1.2. Pursuant to the Exchange
Act. The Company has filed with the Commission a Registration
Statement on Form 8-A (File Number 000-______) providing for the registration
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Units,
the Subunits, the Ordinary Shares and the Warrants. The registration of
the Units, Subunits, Ordinary Shares and Warrants under the Exchange Act has
been declared effective by the Commission on the date hereof.
2.2. No Stop Orders,
etc. Neither the Commission nor, to the Company’s knowledge, any
foreign or state regulatory authority has issued any order or threatened to
issue any order preventing or suspending the use of any Statutory Prospectus or
Prospectus or has instituted or, to the best of the Company’s knowledge,
threatened to institute any proceedings with respect to such an
order.
EarlyBirdCapital,
Inc.
____________,
2011
Page 7 of
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2.3. Disclosures in Registration
Statement.
2.3.1. 10b-5
Representation. At the time of effectiveness of the Registration
Statement (or at the time any post-effective amendment to the Registration
Statement) and at all times subsequent thereto up to the Closing Date, the
Registration Statement, the Statutory Prospectus and the Prospectus contained or
will contain all material statements that are required to be stated therein in
accordance with the Act and the Regulations, and did or will, in all material
respects, conform to the requirements of the Act and the
Regulations. On the Effective Date and at the Time of Sale, the
Registration Statement did not, and on the Closing Date it will not, contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or 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 at the Time of
Sale, the Statutory Prospectus does not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the representation and warranty made in
this Section 2.3.1 does not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement, the
Statutory Prospectus or Prospectus or any amendment thereof or supplement
thereto, which information, it is agreed, shall consist solely of the
subsections captioned “Quotation of Securities,” “Pricing of Securities” and
“Canada” contained in the section of the Prospectus entitled
“Underwriting.”
2.3.2. Disclosure of
Agreements. The agreements and documents described in the
Registration Statement, the Statutory Prospectus and the Prospectus conform to
the descriptions thereof contained therein and there are no agreements or other
documents required to be described in the Registration Statement, the Statutory
Prospectus or the Prospectus or to be filed with the Commission as exhibits to
the Registration Statement, that have not been so described or filed. Each
agreement or other instrument (however characterized or described) to which the
Company is a party or by which its property or business is or may be bound or
affected and (i) that is referred to in the Registration Statement or attached
as an exhibit thereto, or (ii) is material to the Company’s business, has been
duly and validly executed by the Company, is in full force and effect in all
material respects and is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms, except (x)
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally, (y) as enforceability of
any indemnification or contribution provision may be limited under the foreign,
federal and state securities laws, and (z) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and none of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the Company’s
knowledge, any other party is in breach or default thereunder and, to the
Company’s knowledge, no event has occurred that, with the lapse of time or the
giving of notice, or both, would constitute a breach or default
thereunder. To the Company’s knowledge, performance by the Company of the
material provisions of such agreements or instruments will not result in a
violation of 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 assets or businesses, including,
without limitation, those relating to environmental laws and
regulations.
EarlyBirdCapital,
Inc.
____________,
2011
Page 8 of
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2.3.3. Prior Securities
Transactions. No securities of the Company have been sold by the
Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company since the
date of the Company’s formation, except as disclosed in the Registration
Statement.
2.3.4. Regulations. The
disclosures in the Registration Statement, the Statutory Prospectus and the
Prospectus concerning the effects of foreign, federal, state and local
regulation on the Company’s business as currently contemplated are correct in
all material respects and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading.
2.4. Changes After Dates in
Registration Statement.
2.4.1. No Material Adverse
Change. Since the respective dates as of which information is given
in the Registration Statement, the Statutory Prospectus and the Prospectus,
except as otherwise specifically stated therein: (i) there has been no material
adverse change in the condition, financial or otherwise, or business prospects
of the Company; (ii) there have been no material transactions entered into by
the Company, other than as contemplated pursuant to this Agreement and as
discussed in the Registration Statement, the Statutory Prospectus and the
Prospectus; (iii) no member of the Company’s board of directors or management
has resigned from any position with the Company and (iv) no event or occurrence
has taken place which materially impairs, or would likely materially impair,
with the passage of time, the ability of the members of the Company’s board of
directors or management to act in their capacities with the Company as described
in the Registration Statement, the Statutory Prospectus and the
Prospectus.
2.4.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of
which information is given in the Registration Statement, the Statutory
Prospectus and the Prospectus and except as may otherwise be indicated or
contemplated herein or therein, the Company has not: (i) issued any securities
or incurred any liability or obligation, direct or contingent, for borrowed
money; or (ii) declared or paid any dividend or made any other distribution
on or in respect to its capital stock.
EarlyBirdCapital,
Inc.
____________,
2011
Page 9 of
47
2.5. Independent
Accountants. Xxxxxx LLP (“Xxxxxx”), whose report is
filed with the Commission as part of the Registration Statement and included in
the Registration Statement, the Statutory Prospectus and the Prospectus, are
independent registered public accountants as required by the Act, the
Regulations and the Public Company Accounting Oversight Board (the “PCAOB”), including the rules
and regulations promulgated by such entity. To the Company’s
knowledge, Xxxxxx is duly registered and in good standing with the
PCAOB. Xxxxxx has not, during the periods covered by the financial
statements included in the Registration Statement, the Statutory Prospectus and
the Prospectus, provided to the Company any non-audit services, as such term is
used in Section 10A(g) of the Exchange Act.
2.6. Financial Statements;
Statistical Data.
2.6.1. Financial
Statements. The financial statements, including the notes
thereto and supporting schedules included in the Registration Statement, the
Statutory Prospectus and the Prospectus, fairly present the financial position
and the results of operations of the Company at the dates and for the periods to
which they apply; and such financial statements have been prepared in conformity
with United States generally accepted accounting principles, consistently
applied throughout the periods involved; and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein in conformity with the Regulations. No other financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement, the Statutory Prospectus or the
Prospectus. The Registration Statement, the Statutory Prospectus and
the Prospectus disclose all material off-balance sheet transactions,
arrangements, obligations (including contingent obligations), and other
relationships of the Company with unconsolidated entities or other persons that
may have a material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues
or expenses. There are no pro forma or as adjusted financial
statements which are required to be included in the Registration Statement, the
Statutory Prospectus or the Prospectus in accordance with Regulation S-X of the
Regulations which have not been included as so required.
2.6.2. Statistical
Data. The statistical, industry-related and market-related
data included in the Registration Statement, the Statutory Prospectus and/or 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.
2.7. Authorized Capital; Options,
etc. The Company had at the date or dates indicated in each of the
Registration Statement, the Statutory Prospectus and the Prospectus, as the case
may be, duly authorized, issued and outstanding capitalization as set forth in
the Registration Statement, the Statutory Prospectus and the Prospectus.
Based on the assumptions stated in the Registration Statement, the Statutory
Prospectus and the Prospectus, the Company will have on the Closing Date the
adjusted stock capitalization set forth therein. Except as set forth
in, or contemplated by, the Registration Statement, the Statutory Prospectus and
the Prospectus, on the Effective Date and on the Closing Date, there will be no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued Ordinary Shares or any security convertible into
Ordinary Shares, or any contracts or commitments to issue or sell Ordinary
Shares or any such options, warrants, rights or convertible
securities.
EarlyBirdCapital,
Inc.
____________,
2011
Page 10
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2.8. Valid Issuance of
Securities, etc.
2.8.1. Outstanding
Securities. All issued and outstanding Ordinary Shares of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; the holders thereof have no rights of rescission with respect
thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company. The outstanding Ordinary Shares
conform to the descriptions thereof contained in the Registration Statement, the
Statutory Prospectus and the Prospectus. All offers, sales and any transfers of
the outstanding Ordinary Shares of the Company 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.
2.8.2. Securities Sold Pursuant to
this Agreement. The
Securities have been duly authorized and reserved for issuance and when issued
and paid for in accordance with this Agreement, will be validly issued, fully
paid and non-assessable; the holders thereof are not and will not be subject to
personal liability by reason of being such holders; the Securities are not and
will not be subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization, issuance and sale
of the Securities has been duly and validly taken. The Securities conform
in all material respects to the descriptions thereof contained in the
Registration Statement, the Statutory Prospectus and the Prospectus, as the case
may be. When issued, the Underwriter’s Purchase Option, the Underwriter’s
Warrants, the Insider Warrants and the EBC/ThirdParty Warrants and the Warrants
will constitute valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment of the respective exercise prices therefor,
the number and type of securities of the Company called for thereby in
accordance with the terms thereof and such Underwriter’s Purchase Option,
Underwriter’s Warrants, Insider Warrants, the EBC/ThirdParty Warrants and
Warrants are enforceable against the Company in accordance with their respective
terms, except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under foreign, federal and state securities laws; and
(iii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. The
Ordinary Shares issuable upon exercise of the Underwriter’s Purchase Option, the
Underwriter’s Warrants, the Insider Warrants, the EBC/Third Party Warrants and
the Warrants have been reserved for issuance upon the exercise of the Warrant
upon payment of the consideration therefore, and when issued in accordance with
the terms thereof, will be duly and validly authorized, validly issued, fully
paid and non-assessable; the holders thereof are not and will not be subject to
personal liability by reason of being such holders.
2.8.3. No
Integration. Neither the Company nor any of its affiliates
has, prior to the date hereof, made any offer or sale of any securities which
are required to be “integrated” pursuant to the Act or the Regulations with the
offer and sale of the Securities pursuant to the Registration
Statement.
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2.9. Registration Rights of Third
Parties. Except as set forth in the Registration Statement, the
Statutory Prospectus and the Prospectus, no holders of any securities of the
Company or any rights exercisable for or convertible or exchangeable into
securities of the Company have the right to require the Company to register any
such securities of the Company under the Act or to include any such securities
in a registration statement to be filed by the Company.
2.10. Validity and Binding Effect
of Agreements. This Agreement, the Warrant Agreement (as defined in
Section 2.24 hereof), the Trust Agreement, the Subscription Agreements (as
defined in Section 2.25.2 hereof), the Services Agreement (as defined in Section
2.25.5), the Underwriter’s Purchase Option, the Escrow Agreement (as defined in
Section 2.25.3 hereof), the Registration Rights Agreement (as defined in
Section 2.25.7) and the Plan (as defined in Section 3.31) have been duly and
validly authorized by the Company and, when executed and delivered by the
Company, will constitute valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under foreign, federal and state securities laws; and (iii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
2.11. No Conflicts,
etc. The execution, delivery, and performance by the Company of
this Agreement, the Warrant Agreement, the Trust Agreement, the Subscription
Agreements, the Services Agreement, the Underwriter’s Purchase Option, the
Escrow Agreement, the Registration Rights Agreement and the Plan, 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 or violation 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,
obligation, condition, covenant or instrument to which the Company is a party or
bound or to which its property is subject except pursuant to the Trust
Agreement; (ii) result in any violation of the provisions of the Amended and
Restated Memorandum and Articles of Association of the Company; or (iii) violate
any existing applicable statute, 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, business or
assets.
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2.12. No Defaults;
Violations. No material default or violation exists in the due
performance and observance of any term, covenant or condition of any material
license, contract, indenture, mortgage, deed of trust, note, loan or credit
agreement, or any other agreement or instrument evidencing an obligation for
borrowed money, or any other material agreement or instrument to which the
Company is a party or by which the Company may be bound or to which any of the
properties or assets of the Company is subject. The Company is not in violation
of any term or provision of its Amended and Restated Memorandum and Articles of
Association or in violation of any material franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of
its properties or businesses.
2.13. Corporate Power; Licenses;
Consents.
2.13.1. Conduct of
Business. The Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and
bodies that it needs as of the date hereof to conduct its business for the
purposes described in the Registration Statement, the Statutory Prospectus and
the Prospectus. The disclosures in the Registration Statement, the
Statutory Prospectus and the Prospectus concerning the effects of foreign,
federal, state and local regulation on this Offering and the Company’s business
purpose as currently contemplated are correct in all material respects and do
not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Since its formation, the Company has
conducted no business and has incurred no liabilities other than in connection
with and in furtherance of the Offering.
2.13.2. Transactions Contemplated
Herein. The Company has all corporate power and authority to enter
into this Agreement and to carry out the provisions and conditions hereof, and
all consents, authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or order of, and
no filing with, any court, government agency or other body, foreign or domestic,
is required for the valid issuance, sale and delivery, of the Securities and the
consummation of the transactions and agreements contemplated by this Agreement,
the Warrant Agreement, the Trust Agreement, the Subscription Agreements, the
Services Agreement, the Underwriter’s Purchase Option, the Registration Rights
Agreement, the Plan, and the Escrow Agreement and as contemplated by the
Registration Statement, the Statutory Prospectus and Prospectus, except with
respect to applicable foreign, federal and state securities laws and the rules
and regulations promulgated by the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
2.14. D&O
Questionnaires. To the Company’s knowledge, all information
contained in the questionnaires (the “Questionnaires”) completed by
each of the Company’s officers and directors (the “Directors/Officers”)
immediately prior to the Offering and provided to the Underwriter, as such
Questionnaires may have been updated from time to time and confirmed by each of
the Directors/Officers, is true and correct and the Company has not become aware
of any information which would cause the information disclosed in the
Questionnaires to become inaccurate and incorrect.
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2.15. Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or, to
the Company’s knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any of the Directors/Officers or any of the Initial
Shareholders, which has not been disclosed in the Registration Statement, the
Questionnaires, the Statutory Prospectus and the Prospectus.
2.16. Good Standing.
The Company has been duly organized and is validly existing as an exempted
company and is in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of business requires such qualification, except where
the failure to qualify would not have a material adverse effect on the condition
(financial or otherwise), prospects, business or properties of the Company,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Statutory Prospectus and the
Prospectus (exclusive of any supplement thereto) (a “Material Adverse
Effect”).
2.17. No Contemplation of a
Business Combination. Prior to the date hereof, no Company
Affiliate (as hereinafter defined) has, and as of the Closing, the Company and
such Company Affiliates will not have: (a) had any specific Business Combination
under consideration or contemplation; (b) directly or indirectly, contacted any
potential operating assets, business or businesses which the Company may seek to
acquire (each, a “Target
Business”) or any owner, officer, director, manager, agent or
representative thereof or had any substantive discussions, formal or otherwise,
with respect to effecting any potential Business Combination with the Company or
taken any measure, directly or indirectly to locate a Target Business; or (c)
engaged or retained any agent or other representative to identify or locate any
Target Business for the Company.
2.18. Transactions Affecting
Disclosure to FINRA.
2.18.1. Except
as described in the Registration Statement, the Statutory Prospectus and the
Prospectus, there are no claims, payments, arrangements, agreements or
understandings relating to the payment of a finder’s, consulting or origination
fee by the Company or any Company Affiliate with respect to the sale of the
Securities hereunder or any other arrangements, agreements or understandings of
the Company or, to the Company’s knowledge, any Initial Shareholder that may
affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing
to the Company persons who raised or provided capital to the Company; (ii) to
any FINRA member; or (iii) to any person or entity that has any direct or
indirect affiliation or association with any FINRA member, within the twelve
months prior to the Effective Date, other than payments to the Underwriter in
connection with the Offering.
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2.18.3. To
the Company’s knowledge, no officer or director or any direct or indirect
beneficial owner of any class of the Company’s securities, including the Initial
Shareholders and holders of securities to be purchased in the Insider Private
Placement but excluding the EBC Investors (whether debt or equity, registered or
unregistered, regardless of the time acquired or the source from which derived)
(any such individual or entity, a “Company Affiliate”) is a
member, a person associated, or affiliated with a member of FINRA.
2.18.4. To
the Company’s knowledge, no Company Affiliate is an owner of stock or other
securities of any member of FINRA (other than securities purchased on the open
market).
2.18.5. To
the Company’s knowledge, no Company Affiliate has made a subordinated loan to
any member of FINRA.
2.18.6. No
proceeds from the sale of the Public Securities (excluding underwriting
compensation), the Underwriter’s Securities, the Insider Securities, the
EBC/Third Party Securities or the Insider Shares will be paid to any FINRA
member, or any persons associated or affiliated with a member of FINRA, except
as specifically authorized herein.
2.18.7. Except
as contemplated herein with respect to the Underwriter’s Purchase Option, the
Company has not issued any warrants or other securities, or granted any options,
directly or indirectly to anyone who is a potential underwriter in the Offering
or a related person (as defined by FINRA rules) of such an underwriter within
the 180-day period prior to the initial filing date of the Registration
Statement.
2.18.8. To
the Company’s knowledge no person to whom securities of the Company have been
privately issued within the 180-day period prior to the initial filing date of
the Registration Statement has any relationship or affiliation or association
with any member of FINRA.
2.18.9. To
the Company’s knowledge, no FINRA member intending to participate in the
Offering has a conflict of interest (as defined by FINRA rules) with the
Company.
2.18.10.
Except with respect to the Underwriter and/or its designees in connection with
the Offering, the Company has not entered into any agreement or arrangement
(including, without limitation, any consulting agreement or any other type of
agreement) during the 180-day period prior to the initial filing date of the
Registration Statement, which arrangement or agreement provides for the receipt
of any item of value and/or the transfer or issuance of any warrants, options,
or other securities from the Company to a FINRA member, any person associated
with a member (as defined by FINRA rules), any potential underwriters in the
Offering and/or any related persons.
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2.19. Taxes.
2.19.1. There
are no transfer taxes or other similar fees or charges under Cayman Islands law,
U.S. federal law or the laws of any U.S. state or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale by the Company of the
Securities.
2.19.2. The
Company has filed all non-U.S., U.S. federal, state and local tax returns that
are required to be a filed or has requested extensions thereof, except in any
case in which the failure to so file would not have a Material Adverse Effect,
and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing are due
and payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as would not have a Material Adverse
Effect.
2.19.3. As
of the date of this Agreement, the Company is not a Passive Foreign Investment
Company for Federal income tax purposes.
2.20. Foreign Corrupt Practices
Act. Neither the Company nor any of the Company Affiliates or any
other person acting on behalf of the Company is aware of or has taken any
action, directly or indirectly, that: (i) 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”) or otherwise subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding; (ii) if not done in the past, might have had a
Material Adverse Effect or (iii) if not continued in the future, might adversely
affect the assets, business or operations of the Company, including, without
limitation, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business) to
any customer, supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic
or foreign) or any political party or candidate for office (domestic or foreign)
or other person who was, is, or may be in a position to help or hinder the
business of the Company (or assist it in connection with any actual or proposed
transaction). The Company’s internal accounting controls and
procedures are sufficient to cause the Company to comply with the Foreign
Corrupt Practices Act of 1977, as amended.
2.21. Currency and Foreign
Transactions Reporting Act. The operations of the Company are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transaction
Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (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 best knowledge of the Company,
threatened.
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2.22. Bank Secrecy Act; Money
Laundering; Patriot Act. Neither the Company nor to the
Company’s knowledge, any Company Affiliate, has violated: (i) the Bank Secrecy
Act, as amended, (ii) the Money Laundering Laws or (iii) 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.
2.23. Officers’
Certificate. Any certificate signed by any duly authorized officer
of the Company and delivered to the Underwriter or to its counsel shall be
deemed a representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
2.24. Warrant
Agreement. The Company has entered into a warrant agreement with
respect to the Warrants, Underwriters’ Warrants, the Insider Warrants and the
EBC Warrants with CST&T substantially in the form filed as an exhibit to the
Registration Statement (the “Warrant
Agreement”).
2.25. Agreements With Company
Affiliates.
2.25.1. Insider
Letters. The Company has caused to be duly executed legally binding
and enforceable agreements (except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (ii) as enforceability of any indemnification, contribution or
non-compete provision may be limited under foreign, federal and state securities
laws, and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
annexed as exhibits to the Registration Statement (the “Insider Letters”), pursuant to
which each of the Company Affiliates agrees to certain matters, including but
not limited to, the voting of Ordinary Shares held by them and
certain matters described as being agreed to by them under the “Proposed
Business” section of the Registration Statement, the Statutory Prospectus
and Prospectus.
2.25.2. [Intentionally
omitted.]
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2.25.3. Escrow
Agreement. The Company has caused the Initial Shareholders to enter
into an escrow agreement (the “Escrow Agreement”) with
CST&T substantially in the form filed as an exhibit to the Registration
Statement whereby the Insider Shares owned by such parties prior to the Offering
will be held in escrow by CST&T for a period (the “Escrow Period”) commencing on
the Effective Date and expiring one year after the consummation of the Business
Combination or earlier upon the liquidation of the Trust Account if the Company
is unable to consummate a Business Combination by the Termination
Date. During the Escrow Period, such parties shall be prohibited from
selling or otherwise transferring such Insider Shares, except in certain limited
circumstances set forth in the Escrow Agreement. To the Company’s
knowledge, the Escrow Agreement is enforceable against each of the Initial
Shareholders and will not, with or without the giving of notice or the lapse of
time or both, result in a breach of, or conflict with, any of the terms and
provisions of, or constitute a default under, an agreement or instrument to
which any of the Initial Shareholders is a party. The Escrow
Agreement shall not be amended, modified or otherwise changed without the prior
written consent of the Underwriter, such consent not to be unreasonably
withheld.
2.25.4. Non-Competition/Solicitation. No
Directors/Officers are subject to any non-competition agreement or
non-solicitation agreement with any employer or prior employer which could
materially affect each Director’s/Officer’s ability to be and act in the
capacity of a Director/Officer of the Company.
2.25.5. Administrative
Services. The Company has entered into an agreement (“Services Agreement”) with Xxx
Xxx Capital Group, LLC (“Affiliate”) substantially in
the form annexed as an exhibit to the Registration Statement pursuant to which
the Affiliate will make available to the Company general and administrative
services including office space, utilities and secretarial support for the
Company’s use for $7,500 per month.
2.25.6. Loans. The
Initial Shareholders have made loans to the Company in the aggregate amount of
$50,000 (the “Insider
Loans”) pursuant to a promissory note substantially in the forms annexed
as an exhibit to the Registration Statement. The Insider Loans do not
bear any interest and are repayable by the Company on the consummation of the
Offering.
2.25.7. Registration Rights
Agreement. The
Company, the Initial Shareholders, and the purchasers of the Warrant Offering
Warrants will enter into a registration rights agreement (“ Registration Rights Agreement
”) substantially in the form annexed as an exhibit to the Registration
Statement, whereby such parties will be entitled to certain registration rights
as set forth in such Registration Rights Agreement and described more fully in
the Registration Statement.
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2.26. Investment Management Trust
Agreement. The Company has entered into the Trust Agreement with
respect to certain proceeds of the Offering and the Private Placements
substantially in the form filed as an exhibit to the Registration Statement,
pursuant to which the funds held in the Trust Account may be released under
limited circumstances.
2.27. Investments. No
more than 45% of the “value” (as defined in Section 2(a)(41) of the
Investment Company Act of 1940 (“Investment Company Act”)) of
the Company’s total assets (exclusive of cash items and “Government Securities,”
as defined in Section 2(a)(16) of the Investment Company Act) consist of, and no
more than 45% of the Company’s net income after taxes is derived from,
securities other than Government Securities.
2.28. Investment Company
Act. The Company is not required, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to
register as an “investment company” under the Investment Company
Act.
2.29. Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.30. Related Party
Transactions. No relationship, direct or indirect, exists between
or among any of the Company or any Company Affiliate, on the one hand, and any
director, officer, shareholder, customer or supplier of the Company or any
Company Affiliate, on the other hand, which is required by the Act, the Exchange
Act or the Regulations to be described in the Registration Statement, the
Statutory Prospectus and the Prospectus which is not so 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, the Statutory Prospectus 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.
2.31. No
Influence. The Company has not offered, or caused the
Underwriters to offer, the Firm Units to any person or entity with the intention
of unlawfully influencing: (a) a customer or supplier of the Company or any
affiliate of the Company to alter the customer’s or supplier’s level or type of
business with the Company or such affiliate or (b) a journalist or publication
to write or publish favorable information about the Company or any such
affiliate.
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2.32. Xxxxxxxx-Xxxxx. The
Company is in material compliance with the provisions of the Xxxxxxxx-Xxxxx Act
of 2002, as amended (“SOX”), and the rules and
regulations promulgated thereunder and related or similar rules and regulations
promulgated by any governmental or self regulatory entity or agency, that are
applicable to it as of the date hereof.
2.33. Quotation of the Public
Securities on the OTC Bulletin Board. As of the Closing Date,
the Public Securities will have been authorized for quotation on the OTC
Bulletin Board and, to the Company’s knowledge, no proceedings have been
instituted or threatened which would effect, and no event or circumstance has
occurred as of the Effective Date which is reasonably likely to effect, the
quotation of the Public Securities on the OTC Bulletin Board.
2.34. Definition of
“Knowledge”. As used in herein, the term “knowledge of the Company” (or
similar language) shall mean the knowledge of the Company’s Directors/Officers,
with the assumption that such officers and directors shall have made reasonable
and diligent inquiry of the matters presented.
3. Covenants of the
Company. The Company covenants and agrees as follows:
3.1. Amendments to Registration
Statement. The Company will deliver to the Underwriter, prior to
filing, any amendment or supplement to the Registration Statement or Prospectus
proposed to be filed after the Effective Date and shall not file any such
amendment or supplement to which the Underwriter shall reasonably object in
writing.
3.2. Federal Securities
Laws.
3.2.1. Compliance.
During the time when a prospectus is required to be delivered under the Act, the
Company will use all reasonable efforts to comply with all requirements imposed
upon it by the Act, the Regulations and the Exchange Act and by the regulations
under the Exchange Act, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If at any time
when a Prospectus relating to the Public Securities is required to be delivered
under the Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Underwriters, the
Statutory Prospectus and the Prospectus, as then amended or supplemented
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or if
it is necessary during such period to amend the Registration Statement or amend
or supplement the Statutory Prospectus and Prospectus to comply with the Act,
the Company will notify the Underwriter promptly and prepare and file with the
Commission, subject to Section 3.1 hereof, an appropriate amendment to the
Registration Statement or amendment or supplement to the Statutory Prospectus
and Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
3.2.2. Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Underwriter) with the Commission pursuant to the
requirements of Rule 424 of the Regulations.
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3.2.3. Exchange Act
Registration. For a period of five years from the Effective Date
(except in connection with a going private transaction), or until such earlier
time upon which the Trust Account is to be liquidated if a Business Combination
has not been consummated by the Termination Date, the Company will use its best
efforts to maintain the registration of the Units, Subunits (until the Subunits
separate upon consummation of a Business Combination), Ordinary Shares and
Warrants (in the case of the Units and the Warrants, until the Warrants expire
and are no longer exercisable or have been exercised in full) under the
provisions of the Exchange Act. The Company will not deregister the Units,
Subunits, Ordinary Shares or Warrants under the Exchange Act without the prior
written consent of the Underwriter.
3.2.4. Exchange Act
Filings. From the Effective Date until the earlier
of five years after the consummation of the Company’s initial Business
Combination, or the liquidation of the Trust Account if a Business Combination
is not consummated by the Termination Date, the Company shall timely file with
the Commission via the Electronic Data Gathering, Analysis and Retrieval System
("XXXXX") such
statements and reports as are required to be filed by a company registered under
Section 12(g) of the Exchange Act, as if the Company were a company incorporated
in the United States (it being agreed, however, that if the Company becomes a
foreign private issuer, with respect to quarterly and annual financial
information, the Company may furnish such information on Form 6-K or Form 20-F,
as the case may be, and with respect to proxy solicitation materials a
preliminary proxy statement shall not be required to be filed with the
Commission).
3.2.5. Xxxxxxxx-Xxxxx
Compliance. As soon as it is legally required to do so, the
Company shall take all actions necessary to obtain and thereafter maintain
material compliance with each applicable provision of SOX and the rules and
regulations promulgated thereunder and related or similar rules and regulations
promulgated by any other governmental or self regulatory entity or agency with
jurisdiction over the Company.
3.3. Blue Sky
Filing. Unless the Securities are listed or quoted, as the case may
be, on the New York Stock Exchange, the Nasdaq Stock Market or the NYSE Amex
(“AMEX”), the Company
will endeavor in good faith, in cooperation with the Underwriter, at or prior to
the time the Registration Statement becomes effective, to qualify the Public
Securities for offering and sale under the securities laws of such jurisdictions
as the Underwriter may reasonably designate, provided that no such qualification
shall be required in any jurisdiction where, as a result thereof, the Company
would be subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction. All blue sky work shall
be undertaken by counsel of the Underwriter’s choice. In each
jurisdiction where such qualification shall be effected, the Company will,
unless the Underwriter agrees that such action is not at the time necessary or
advisable, use all reasonable efforts to file and make such statements or
reports at such times as are or may be required by the laws of such
jurisdiction.
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3.4. Delivery of Materials to
Underwriters. The Company will deliver to each of the several
Underwriters, without charge and from time to time during the period when a
prospectus is required to be delivered under the Act or the Exchange Act, such
number of copies of each Statutory Prospectus, the Prospectus and all amendments
and supplements to such documents as such Underwriters may reasonably request
and, as soon as the Registration Statement or any amendment or supplement
thereto becomes effective, deliver to the Underwriter two manually executed
Registration Statements, including exhibits, and all post-effective amendments
thereto and copies of all exhibits filed therewith or incorporated therein by
reference and all manually executed consents of certified experts.
3.5. Events Requiring Notice to
the Underwriter. The Company will use its best efforts
to cause the Registration Statement to remain effective until the
Company announces its initial Business Combination and will notify the
Underwriter immediately and confirm the notice in writing: (i) of the
effectiveness of the Registration Statement and any amendment thereto; (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or any post-effective amendment thereto or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or of the initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any foreign or state securities commission of any
proceedings for the suspension of the qualification of the Public Securities for
offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose; (iv) of the mailing and delivery to the
Commission for filing of any amendment or supplement to the Registration
Statement or Prospectus; (v) of the receipt of any comments or request for any
additional information from the Commission; and (vi) of the happening of any
event during the period described in Section 3.4 hereof that, in the
judgment of the Company or its counsel, makes any statement of a material fact
made in the Registration Statement, the Statutory Prospectus or the Prospectus
untrue or that requires the making of any changes in the Registration Statement,
the Statutory Prospectus and Prospectus in order to make the statements therein,
(with respect to the Prospectus and the Statutory Prospectus and in light of the
circumstances under which they were made), not misleading. If the
Commission or any foreign or state securities commission shall enter a stop
order or suspend such qualification at any time, the Company will make every
reasonable effort to obtain promptly the lifting of such order.
3.6. Review of Financial
Statements. Until the earlier of five years from the Effective
Date, or until the liquidation of the Trust Account if a Business Combination is
not consummated by the Termination Date, the Company, at its expense, shall
cause its regularly engaged independent certified public accountants to review
(but not audit) the Company’s financial statements for each of the first three
fiscal quarters prior to the announcement of quarterly financial information,
the filing of the Company’s Form 10-Q quarterly report and the mailing of
quarterly financial information to shareholders.
3.7. Affiliated
Transactions.
3.7.1. Business
Combinations. The Company will not consummate a Business
Combination with any entity which is affiliated with any Company Affiliate
unless the Company obtains an opinion from an independent investment banking
firm reasonably acceptable to the Underwriter that the Business Combination is
fair to the Company’s shareholders from a financial
perspective.
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3.7.2. Services. The
Company has entered into the Services Agreement with Affiliate pursuant to which
the Affiliate will make available to the Company general and administrative
services including office space, utilities and secretarial support for the
Company’s use for $7,500 per month. The Company shall not enter into
any other arrangement for the provision of such services that will require the
Company to pay in excess of $7,500 per month for such services.
3.7.3. Compensation.
Except as otherwise set forth in this Section 3.7, the Company shall not
pay any Initial Shareholder or Company Affiliate or any of their affiliates any
fees or compensation from the Company, for services rendered to the Company
prior to, or in connection with, this Offering or the consummation of a Business
Combination; provided
that payments may be made pursuant to the Services Agreement and the
Insider Loans may be repaid and the Company’s directors and officers shall be
entitled to reimbursement from the Company for their out-of-pocket expenses
incurred on the Company’s behalf, and other expenses incurred by them in
connection with seeking and consummating a Business Combination.
3.8. Secondary Market Trading and
Standard & Poor’s. The Company will apply to be included
in Standard & Poor’s Daily News and Corporation Records Corporate
Descriptions for a period of five years from the consummation of a Business
Combination. Additionally, the Company shall take such steps as may
be necessary to obtain a secondary market trading exemption for the Company’s
securities in such jurisdictions as may be requested by the Underwriter;
provided, however, no qualification shall be required in any jurisdiction where,
as a result thereof, the Company would be subject to service of general process
or to taxation as a foreign corporation doing business in such
jurisdiction. The Company shall also take such other action as may be
reasonably requested by the Underwriter to obtain a secondary market trading
exemption in such other states as may be requested by the
Underwriter.
3.9. Investor Relations
Firm. Promptly after the execution of a definitive agreement
for a Business Combination, the Company shall retain an investor relations firm
with the expertise necessary to assist the Company both before and after the
consummation of the Business Combination for a term to be agreed upon by the
Company and the Underwriter.
3.10. Reports to the
Underwriter.
3.10.1. Periodic Reports,
etc. For a period of five years from the Effective Date or until
such earlier time upon which the Company is required to be liquidated and
dissolved, the Company will furnish to the Underwriter and its counsel copies of
such financial statements and other periodic and special reports as the Company
from time to time furnishes generally to holders of any class of its securities,
and promptly furnish to the Underwriter: (i) a copy of each periodic report the
Company shall be required to file with the Commission; (ii) a copy of every
press release and every news item and article with respect to the Company
or its affairs which was released by the Company; (iii) a copy of each
Current Report on Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or
prepared by the Company; (iv) five copies of each registration statement filed
by the Company with the Commission under the Securities Act; and (v) such
additional documents and information with respect to the Company and the affairs
of any future subsidiaries of the Company as the Underwriter may from time to
time reasonably request; provided that the Underwriter shall sign, if requested
by the Company, a Regulation FD compliant confidentiality agreement which is
reasonably acceptable to the Underwriter and its counsel in connection with the
Underwriter’s receipt of such information. Documents filed with the
Commission pursuant to XXXXX shall be deemed to have been delivered to the
Underwriter pursuant to this section.
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3.10.2. For
a period of five years following the Effective Date or until the Company’s
earlier dissolution and liquidation, the Company shall retain a transfer and
warrant agent acceptable to the Underwriter. CST&T is acceptable
to the Underwriters.
3.10.3. Secondary Market Trading
Survey. The Company shall engage Xxxxxxxx Xxxxxx (“GM”) for a one-time fee of
$5,000 payable on the Closing Date to deliver to and update the Underwriter on a
timely basis, but in any event on the Effective Date, a written report detailing
those states in which the Public Securities may be traded in non-issuer
transactions under the Blue Sky laws of the fifty States (the “Secondary Market Trading
Survey”).
3.11. Disqualification of Form S-1
and S-3. Until the earlier of seven years from the
date hereof or until the Warrants have expired and are no longer exercisable,
the Company will not take any action or actions which may disqualify the Company
from using Forms S-1 and S-3 (or other appropriate form) for the registration of
the Warrants under the Act.
3.12. Payment
of Expenses.
The Company hereby agrees to pay on each of the Closing Date and the
Option Closing Date, if any, to the extent not paid at Closing Date, all fees
and expenses incident to the performance of the obligations of the Company under
this Agreement, including, but not limited to: (i) the preparation, printing,
filing and mailing (including the payment of postage with respect to such
mailing) of the Registration Statement, the Statutory Prospectus, and the final
Prospectus and mailing of this Agreement and related documents, including the
cost of all copies thereof and any amendments thereof or supplements thereto
supplied to the Underwriters in quantities as may be required by the
Underwriters; (ii) the printing, engraving, issuance and delivery of the Units,
the Ordinary Shares and the Warrants included in the Units, including any
transfer or other taxes payable thereon; (iii) the qualification of the Public
Securities under state or foreign securities or Blue Sky laws, including the
costs of printing and mailing “Preliminary Blue Sky Memorandum,” and all
amendments and supplements thereto, fees and disbursements for the Underwriter’s
counsel retained for such purpose (such fees shall be $15,000 in the aggregate
(of which $7,500 has previously been paid)), and a one-time fee of $5,000
payable to the Underwriter’s counsel for the preparation of the Secondary Market
Trading Survey; (iv) filing fees, costs and expenses incurred in registering the
Offering with FINRA; (v) fees and disbursements of the transfer and warrant
agent; (vi) the preparation and delivery of transaction lucite cubes or similar
commemorative items in a style and quantity as reasonably requested by the
Underwriter; and (vii) all other costs and expenses customarily borne by an
issuer incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 3.12. The
Underwriter may deduct from the net proceeds of the Offering payable to the
Company on the Closing Date the expenses set forth above (which shall be
mutually agreed upon between the Company and the Underwriter prior to Closing)
to be paid by the Company to the Underwriter and others.
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3.12.1
Road Show
Expenses. All costs and expenses of the Company associated
with “road show” marketing and “due diligence” trips for the Company’s
management to meet with prospective investors, including without limitation, all
travel, food and lodging expenses associated with such trips incurred by the
Company or such management, shall be paid for by the
Company. Notwithstanding anything herein to the contrary, the Company
shall not be responsible for any costs or expenses associated with “road show”
marketing and “due diligence” trips to meet with prospective investors,
including without limitation, all travel, food and lodging expenses associated
with such trips incurred by the Underwriter on its own behalf.
3.12.2
Failure to
Perform. If (i)
the Underwriter elects not to proceed with the offering for reasons other than
as described in the next sentence or (ii) the Company elects not to proceed with
the offering because of the Underwriter’s inability to complete the offering at
the size and on the terms herein within a reasonable period of time, the
Underwriter shall be responsible for its out-of-pocket expenses. If (i) the
Underwriter elects not to proceed with the offering because the Company has
materially breached any of its representations, warranties or obligations
hereunder, or (ii) if the Company elects not to proceed with the offering for
any reason other than the Underwriter’s inability to complete the offering at
the size and on the terms herein within a reasonable period of time (either of
such events being referred to herein as an “Offering Termination”), the Company
shall be obligated to reimburse EBC in full for its reasonable out-of pocket
accountable expenses actually incurred through such date, up to an aggregate of
$75,000.
3.13. Right of First
Refusal. The Company hereby grants the Underwriter a right of
first refusal to act as co-manager for any public or private sale of debt or
equity securities (excluding sales to employees) of the Company or any
subsidiary or successor of the Company (“Proposed Financing”) for a
period of two (2) years from the consummation of the Business Combination (but
in no event will such right extend past the three-year anniversary of the
Effective Date). If the Underwriter fails to accept in writing any
proposal for any such Proposed Financing within thirty (30) days after receipt
of a written notice from the Company containing such proposal, then the
Underwriter shall have the right and shall be given the opportunity to
participate in the underwriting syndicate for the Proposed Financing at a level
immediately below the co-manager(s) or at such other level below the
co-manager(s) as the Underwriter shall select. The Underwriter shall
also be afforded the opportunity to purchase, as a member of the selling group
for the Proposed Financing, the largest allocation provided to any member of the
selling group.
3.14. Application of Net
Proceeds. The Company will apply the net proceeds from this
Offering received by it in a manner substantially consistent with the
application described under the caption “Use of Proceeds” in the
Prospectus.
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3.15. Delivery of Earnings
Statements to Security Holders. The Company will make generally
available to its security holders as soon as practicable, but not later than the
first day of the fifteenth full calendar month following the Effective Date, an
earnings statement (which need not be certified by independent public or
independent certified public accountants unless required by the Act or the
Regulations, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Act) covering a period of at least twelve consecutive
months beginning after the Effective Date.
3.16. Notice to
FINRA.
3.16.1. Business
Combination. For a period of ninety days following the
Effective Date, in the event any person or entity (regardless of any FINRA
affiliation or association) is engaged to assist the Company in its search for a
Business Combination candidate or to provide any similar Business
Combination-related services, the Company will provide the following information
(the “Business Combination
Information”) to FINRA and the Underwriter: (i) complete
details of all services and copies of agreements governing such services (which
details or agreements may be appropriately redacted to account for privilege or
confidentiality concerns); and (ii) justification as to why the person or
entity providing the Business Combination-related services should not be
considered an “underwriter and related person” with respect to the Company’s
initial public offering, as such term is defined in Rule 5110 of FINRA’s Conduct
Rules. The Company also agrees that proper disclosure of such
arrangement or potential arrangement will be made in the proxy statement which
the Company will file for purposes of soliciting shareholder approval for the
Business Combination. Upon the Company’s delivery of the Business
Combination Information to the Underwriter, the Company hereby expressly
authorizes the Underwriter to provide such information directly to FINRA as a
result of representations the Underwriter have made to FINRA in connection with
the Offering.
3.16.2. Broker/Dealer. In the
event the Company intends to register as a broker/dealer, merge with or acquire
a registered broker/dealer, or otherwise become a member of FINRA, it shall
promptly notify FINRA.
3.17. Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Underwriter) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.18. Internal
Controls. From and after the Closing Date, the Company will
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary in order to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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3.19. Accountants.
For a period of five years from the Effective Date or until such earlier time
upon which the Trust Account is required to be liquidated, the Company shall
retain Xxxxxx or other independent public accountants reasonably acceptable to
the Underwriter.
3.20. Form 8-K’s. The
Company has retained Xxxxxx 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
Offering. Within four (4) Business Days of the Closing Date, the
Company shall file a Current Report on Form 8-K with the Commission, which
Report shall contain the Company’s Audited Financial Statements. If
the Over-Allotment Option has not been exercised on the Effective Date, the
Company will also file an amendment to the Current Report on Form 8-K, or a new
Current Report on Form 8-K, to provide updated financial information of the
Company to reflect the exercise and consummation of the Over-Allotment
Option.
3.21. FINRA. The
Company shall advise FINRA if it is aware that any 5% or greater shareholder of
the Company becomes an affiliate or associated person of a FINRA member
participating in the distribution of the Securities.
3.22. Corporate
Proceedings. All corporate proceedings and other legal matters necessary
to carry out the provisions of this Agreement and the transactions contemplated
hereby shall have been done to the reasonable satisfaction to counsel for the
Underwriters.
3.23. Investment Company.
The Company shall cause the proceeds of the Offering to be held in the Trust
Account to be invested only in “government securities” with specific maturity
dates or in money market funds meeting the conditions of Rule 2a-7 promulgated
under the Investment Company Act as set forth in the Trust Agreement and
disclosed in the Prospectus. The Company will otherwise conduct its business in
a manner so that it will not become subject to the Investment Company Act.
Furthermore, once the Company consummates a Business Combination, it will be
engaged in a business other than that of investing, reinvesting, owning, holding
or trading securities.
3.24. Press
Releases. The Company agrees that it will not issue press
releases or engage in any other publicity, without the Underwriter’s prior
written consent (not to be unreasonably withheld), for a period of ninety (90)
days after the Closing Date; provided that in no event shall the Company be
prohibited from issuing any press release or engaging in any other publicity
required by law.
3.25. Insurance. The
Company will maintain directors’ and officers’ insurance (including insurance
covering the Company, its directors and officers for liabilities or losses
arising in connection with this Offering, including, without limitation,
liabilities or losses arising under the Act, the Exchange Act, the Rules and
Regulations and applicable foreign securities laws).
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3.26. Electronic
Prospectus. The Company shall cause to be prepared and delivered to the
Underwriter, at its expense, promptly, but in no event later than two (2)
Business Days from the effective date of this Agreement, an Electronic
Prospectus to be used by the Underwriters in connection with the
Offering. As used herein, the term “Electronic Prospectus” means a
form of prospectus, and any amendment or supplement thereto, that meets each of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Underwriter, that may be transmitted electronically by the
other Underwriters to offerees and purchasers of the Units for at least the
period during which a Prospectus relating to the Units is required to be
delivered under the Securities Act; (ii) it shall disclose the same information
as the paper prospectus and prospectus filed pursuant to XXXXX, except to the
extent that graphic and image material cannot be disseminated electronically, in
which case such graphic and image material shall be replaced in the electronic
prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or
convertible into a paper format or an electronic format, satisfactory to the
Underwriter, that will allow recipients thereof to store and have continuously
ready access to the Prospectus at any future time, without charge to such
recipients (other than any fee charged for subscription to the Internet as a
whole and for on-line time).
3.27. Reservation of
Shares. The Company will reserve and keep available that
maximum number of its authorized but unissued securities which are issuable upon
exercise of the Warrants, the Insider Warrants, the EBC Warrants and the
Underwriter’s Securities outstanding from time to time.
3.28. Warrant Offering
Warrants.
3.28.1. The
Company hereby acknowledges and agrees that the Insider Warrants shall be
exercisable on a cashless basis and that the Insider Warrants, as well as any
Warrants purchased by the Insiders in the open market after the Offering, shall
not be redeemable by the Company, in each event so long as such warrants are
held by the Insiders or their affiliates.
3.28.2. The
Company hereby acknowledges and agrees that the EBC/Third Party Warrants, as
well as any Warrants purchased by the initial purchasers of the EBC Warrants or
their affiliates in the open market after the Offering, shall only be redeemable
by the Company on a cash basis with EBC’s consent so long as such EBC/Third
Party Warrants are held by the initial purchasers thereof or their affiliates.
In the event that the Company calls the EBC Warrants or the/Third Party Warrants
for redemption on a cashless basis, the Company will not be required to obtain
the prior consent of EBC. Any Warrants purchased by the initial purchasers of
the Third Party Warrants or their affiliates in the open market after the
Offering will be identical to the Public Warrants.
3.29. Future
Financings. The Company agrees that neither it, nor any
successor or subsidiary of the Company, will consummate any public or private
equity or debt financing prior to or in connection with the consummation of a
Business Combination, unless all investors in such financing expressly waive, in
writing, any rights in or claims against the Trust Account.
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3.30. Quotation on the OTC
Bulletin Board. The Company will use its best efforts to
maintain the quotation of the Public Securities on the OTC Bulletin Board or a
national securities exchange until the earlier of five (5) years from the date
of this Agreement or until the Company’s securities are no longer registered
under the Exchange Act.
3.31. Subunit Repurchases.
The Company has entered into a 10b5-1 plan (the “Plan”) pursuant to which the
Company is required to maintain a limit order to purchase up to 1,250,000
Subunits (or 1,437,500 Subunits if the Over-Allotment Option is exercised in
full) using funds held in the Trust Account at any time commencing 61 days after
the Effective Date and ending on the date immediately prior to the vote held to
approve a Business Combination. If the Company repurchases any
Subunits prior to the vote held to approve a Business Combination, such
repurchases shall (i) be made only in accordance with the Plan and (ii) comply
with the technical requirements of Rule 10b-18 under the Exchange Act (even if
such repurchases cannot actually be effectuated under Rule 10b-18).
3.32. Business Combination
Announcement. Within five business days following the
consummation by the Company of a Business Combination, the Company shall cause
an announcement (“Business
Combination Announcement”) to be placed, at its cost, in The Wall Street
Journal, The New York Times and a third publication to be selected by the
Underwriter announcing the consummation of the Business Combination and
indicating that the Underwriter was the managing underwriter in the Offering and
the Company’s investment banker on the Business Combination. The
Company shall supply the Underwriter with a draft of the Business Combination
Announcement and provide the Underwriter with a reasonable opportunity to
comment thereon. The Company will not place the Business Combination
Announcement without the final approval of the Underwriter, which such approval
will not be unreasonably withheld.
3.33. Foreign Private Issuer
Status. The Company hereby agrees that if, after the date
hereof, it should satisfy the formal requirements of being considered a "foreign
private issuer" (as defined in Section 3b-4 of the Exchange Act), until the
consummation of its initial Business Combination it shall (i) not take any
action to avail itself of such designation and (ii) continue to file all such
statements and reports as are required to be filed by a United States company
registered under Section 12(g) of the Exchange Act.
3.34. Location of Trust
Account. The Company hereby agrees that, prior to a Business
Combination, the Trust Account will be held in an account in the United States
of America.
4. Representations and
Warranties of the Underwriter. EBC
waives any right of set-off or any right, title, interest or claim of any kind
that EBC may have to any proceeds, and any interest thereon, held in the Trust
Account, and acknowledges and agrees that it shall not make any claims or
proceed against the Trust Account, including by way of set-off, and shall not be
entitled to any funds in the Trust Account under any circumstance. In the event
EBC has a claim against the Company under this Agreement, EBC will pursue such
claim solely against the Company and not against the Trust
Account.
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5. Conditions of Underwriter’s
Obligations. The obligations of the Underwriter to purchase and pay
for the Units, as provided herein, shall be subject to the continuing accuracy
of the representations and warranties of the Company as of the date hereof and
as of the Closing Date to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof and to the performance by the
Company of its obligations hereunder and to the following
conditions:
5.1. Regulatory
Matters.
5.1.1. Effectiveness of
Registration Statement. The Registration Statement shall have
become effective not later than 5:00 p.m., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by the
Underwriter, and, at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of GM.
5.1.2. FINRA
Clearance. By the Effective Date, the Underwriter shall have
received clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriter as described in the Registration
Statement.
5.1.3. No Commission Stop
Order. At the Closing Date, the Commission has not issued any
order or threatened to issue any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any part thereof, and has not
instituted or, to the Company’s knowledge, threatened to institute any
proceedings with respect to such an order.
5.1.4. No Blue Sky Stop
Orders. No order suspending the sale of the Units in any
jurisdiction designated by the Underwriter pursuant to Section 3.3 hereof
shall have been issued on the Closing Date, and no proceedings for that purpose
shall have been instituted or shall be contemplated.
5.1.5. OTC Bulletin Board
Quotation. The Public Securities shall have been approved for
quotation on the OTC Bulletin Board.
5.2. Company Counsel
Matters.
5.2.1. Closing Date Opinion of
Counsel. On the Closing Date, the Underwriter shall have received
the favorable opinions of Loeb & Loeb LLP and Xxxxxxx Xxxx & Xxxxxxx,
each dated as of the Closing Date, addressed to the Underwriter as
representative for the several Underwriters and in forms attached as Exhibits
A and B
hereto, respectively.
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4.2.2 Reliance. In
rendering such opinion, such counsel may rely: (i) as to matters involving the
application of laws other than the laws of the United States and jurisdictions
in which they are admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to the Underwriter) of other counsel
reasonably acceptable to the Underwriter, familiar with the applicable laws; and
(ii) as to matters of fact, to the extent they deem proper, on certificates
or other written statements of officers of the Company and officers of
departments of various jurisdiction having custody of documents respecting the
corporate existence or good standing of the Company, provided that copies of any
such statements or certificates shall be delivered to the Underwriters’ counsel
if requested. The opinion of counsel for the Company and any opinion
relied upon by such counsel for the Company shall include a statement to the
effect that it may be relied upon by counsel for the Underwriters in its opinion
delivered to the Underwriters.
5.3. Cold Comfort
Letter. At the time this Agreement is executed, and at the Closing
Date, the Underwriter shall have received a letter, addressed to the Underwriter
and in form and substance satisfactory in all respects (including the
non-material nature of the changes or decreases, if any, referred to in clause
(iii) below) to the Underwriter and to GM from Xxxxxx dated, respectively, as of
the date of this Agreement and as of the Closing Date:
(i) Confirming
that they are independent accountants with respect to the Company within the
meaning of the Act and the applicable Regulations and that they have not, during
the periods covered by the financial statements included in the Registration
Statement, the Statutory Prospectus and the Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10A(g) of the
Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that: (a)
the unaudited financial statements of the Company included in the Registration
Statement, the Statutory Prospectus and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited financial statements of the Company included in the
Registration Statement, the Statutory Prospectus and the Prospectus; or (b) at a
date not later than five days prior to the Effective Date or Closing Date, as
the case may be, there was any change in the capital stock or long-term debt of
the Company, or any decrease in the shareholders’ equity of the Company as
compared with amounts shown in the October 6, 2010 balance sheet included in the
Registration Statement, the Statutory Prospectus and the Prospectus, other than
as set forth in or contemplated by the Registration Statement, the Statutory
Prospectus and the Prospectus, or, if there was any decrease, setting forth the
amount of such decrease, and (c) during the period from October 6, 2010 to a
specified date not later than two (2) days prior to the Effective Date or
Closing Date, as the case may be, there was any decrease in revenues, net
earnings or net earnings per Ordinary Share, in each case as compared with the
corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement and the Prospectus, or, if there was
any such decrease, setting forth the amount of such decrease;
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(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company;
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Statutory Prospectus
and the Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the general
accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not during the immediately preceding five year period brought to
the attention of the Company’s management any reportable condition related to
internal structure, design or operation as defined in the Statement on Auditing
Standards No. 60 “Communication of Internal Control Structure Related Matters
Noted in an Audit,” in the Company’s internal controls; and
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as the
Underwriter may reasonably request.
5.4. Officers’
Certificates.
5.4.1.
Officers’
Certificate. As of the Closing Date, the Underwriter shall have
received a certificate of the Company signed by a Co-Chair of the Board or the
Chief Executive Officer and the Secretary or Assistant Secretary of the Company
(in their capacities as such), respectively, to the effect that the Company has
performed all covenants and complied with all conditions required by this
Agreement to be performed or complied with by the Company prior to and as of the
Closing Date and that the conditions set forth in Section 4.5 hereof have
been satisfied as of such date and that, as of Closing Date, the representations
and warranties of the Company set forth in Section 2 hereof are true and
correct. In addition, the Underwriter will have received such other and
further certificates of officers of the Company as the Underwriter may
reasonably request.
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5.4.2. Secretary’s
Certificate. As of the Closing Date, the Underwriter shall have
received a certificate of the Company signed by the Secretary or Assistant
Secretary of the Company, respectively, certifying: (i) that the Amended and
Restated Memorandum and Articles of Association of the Company are true and
complete, have not been modified and are in full force and effect; (ii) that the
resolutions relating to the Offering are in full force and effect and have not
been modified; (iii) all correspondence between the Company or its counsel and
the Commission; and (iv) as to the incumbency of the officers of the
Company. The documents referred to in such certificate shall be attached
to such certificate.
5.5. No Material
Changes. Prior to the Closing Date: (i) there shall have been no
material adverse change or development involving a material adverse change in
the condition or prospects or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition is set forth in
the Registration Statement, the Statutory Prospectus and Prospectus; (ii) no
action suit or proceeding, at law or in equity, shall have been pending or
threatened against the Company or any Company Affiliate before or by any court
or foreign, federal or state commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding may materially adversely
affect the business, operations, prospects or financial condition or income of
the Company, except as set forth in the Registration Statement, the Statutory
Prospectus and Prospectus; (iii) no stop order shall have been issued under the
Act and no proceedings therefor shall have been initiated or threatened by the
Commission; and (iv) the Registration Statement, the Statutory Prospectus and
the Prospectus and any amendments or supplements thereto shall contain all
material statements which are required to be stated therein in accordance with
the Act and the Regulations and shall conform in all material respects to the
requirements of the Act and the Regulations, and none of the Registration
Statement, the Statutory Prospectus or the Prospectus, or any amendment or
supplement thereto shall contain any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Statutory Prospectus and
Prospectus, in light of the circumstances under which they were made), not
misleading.
5.6. Delivery of
Agreements.
5.6.1. Effective Date
Deliveries. On the Effective Date, the Company shall have delivered
to the Underwriter executed copies of the Escrow Agreement, the Trust Agreement,
the Services Agreement, the Warrant Agreement, the Subscription Agreements, the
Registration Rights Agreements, all of the Insider Letters and the
Plan.
5.6.2. Closing Date
Deliveries. On the Closing Date, the Company shall have delivered
to the Underwriter, the Underwriter’s Purchase Option and the Secondary Market
Trading Survey from GM.
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5.7. Insider Warrants. On
the Closing Date, the Insider Investors shall have purchased the Insider
Warrants and the purchase price for such securities shall be deposited into the
Trust Account.
6. Conditions of the Company’s
Obligations. The obligations of the Company to deliver the
Units, as provided herein, shall be subject to the continuing accuracy of the
representations and warranties of the Underwriter as of the date hereof and as
of the Closing Date and to the performance by the Underwriter of its obligations
hereunder and to the following condition:
6.1. Warrant Offering
Warrants. On the Closing Date, the aggregate purchase price of
$924,999.60 for the Warrant Offering Warrants shall be deposited into the Trust
Account.
7. Indemnification.
7.1. Indemnification of
Underwriters.
7.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify and
hold harmless, to the fullest extent permitted by applicable law, the
Underwriter and each dealer selected by the Underwriter that participates in the
offer and sale of the Units (each a “Selected Dealer”) and each of
their respective directors, officers and employees and each person, if any, who
controls any such Underwriter or Selected Dealer (“Controlling Person”) within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
and its counsel, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between the Underwriter and the Company or between the
Underwriter and any third party or otherwise) to which they or any of them may
become subject under the Act, the Exchange Act or any other foreign, federal,
state or local statute, law, rule, regulation or ordinance or at common law or
otherwise or under the laws, rules and regulation of foreign countries, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in (i) any Preliminary Prospectus, the Registration
Statement, or the Prospectus (as from time to time each may be amended and
supplemented); (ii) in any post-effective amendment or amendments or any new
registration statement and prospectus relating to any the securities of the
Company described herein; or (iii) any application or other document or written
communication (in this Section 7 collectively called “application”) executed by the
Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Units under the securities laws thereof or
filed with the Commission, any foreign or state securities commission or agency,
NASDAQ, the Amex, the OTC Bulletin Board or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to an Underwriter by or on behalf of such
Underwriter expressly for use in any Preliminary Prospectus, the Registration
Statement the Prospectus or any amendment or supplement thereof, or in any
application, as the case may be, which furnished written information, it is
expressly agreed, consists solely of the information described in the last
sentence of Section 2.3.1. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of any Underwriter to the extent that any loss, liability, claim,
damage or expense of such Underwriter results from the fact that a copy of the
Prospectus was not given or sent to the person asserting any such loss,
liability, claim or damage at or prior to the written confirmation of sale of
the Securities to such person as required by the Act and the Regulations, and if
the untrue statement or omission has been corrected in the Prospectus, unless
such failure to deliver the Prospectus was a result of non-compliance by the
Company with its obligations under Section 3.4 hereof. The Company
agrees promptly to notify the Underwriter of the commencement of any litigation
or proceedings against the Company or any of its officers, directors or
controlling persons in connection with the issue and sale of the Securities or
in connection with the Preliminary Prospectus, the Registration Statement or the
Prospectus.
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7.1.2. Procedure. If
any action is brought against an Underwriter or controlling person in respect of
which indemnity may be sought against the Company pursuant to
Section 7.1.1, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the Company shall assume the
defense of such action, including the employment and fees of counsel (subject to
the reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless: (i) the employment of such counsel at the expense of the Company
shall have been authorized in writing by the Company in connection with the
defense of such action; (ii) the Company shall not have employed counsel to have
charge of the defense of such action; or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events the reasonable fees and expenses of not more than one additional firm of
attorneys selected by the Underwriter and/or controlling person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein,
if the Underwriter or controlling person shall assume the defense of such action
as provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably
withheld.
7.2. Indemnification of the
Company. The Underwriter agrees to indemnify and hold harmless the
Company, its directors, officers, and employees and agents who control the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and its counsel, against any and all loss, liability, claim,
damage and expense described in the foregoing indemnity from the Company to the
Underwriter, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or in any application, in reliance upon, and in strict
conformity with, written information furnished to the Company with respect to
such Underwriter by or on behalf of the Underwriter expressly for use in such
Registration Statement, Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto or in any such application, which furnished written
information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. In case any action shall
be brought against the Company or any other person so indemnified based on any
Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to the Underwriter by the
provisions of Section 7.1.2.
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7.3. Contribution.
7.3.1. Contribution
Rights. In order to provide for just and equitable contribution
under the Act in any case in which (i) any person entitled to
indemnification under this Section 7 makes claim for indemnification
pursuant hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be required on the
part of any such person in circumstances for which indemnification is provided
under this Section 7, then, and in each such case, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial offering price appearing thereon and the Company
is responsible for the balance; provided, that, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each director, officer
and employee of an Underwriter or the Company, as applicable, and each person,
if any, who controls an Underwriter or the Company, as applicable, within the
meaning of Section 15 of the Act shall have the same rights to contribution
as the Underwriter or the Company, as applicable.
7.3.2. Contribution
Procedure. Within fifteen days after receipt by any party to this
Agreement (or its representatives) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (“contributing party”), notify
the contributing party of the commencement thereof, but the omission to so
notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representatives of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available.
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8. Intentionally
Omitted.
9. Additional
Covenants.
9.1. Additional Shares or
Options. The Company hereby agrees that until the Company
consummates a Business Combination, it shall not issue any Subunits, any
Ordinary Shares or any options or other securities convertible into Ordinary
Shares or any Preferred Shares which participate in any manner in the Trust
Account or which vote as a class with the Ordinary Shares on a Business
Combination.
9.2. Trust Account Waiver
Acknowledgments. The Company hereby agrees that it will not
commence its due diligence investigation of any Target Business or obtain the
services of any vendor unless and until such Target Business or vendor
acknowledges in writing, whether through a letter of intent, memorandum of
understanding or other similar document (and subsequently acknowledges the same
in any definitive document replacing any of the foregoing), that (a) it has read
the Prospectus and understands that the Company has established the Trust
Account, initially in an amount of $15,000,000 for the benefit of the Public
Shareholders and that, except for the interest earned on the amounts held in the
Trust Account, the Company may disburse monies from the Trust Account only: (i)
to the Public Shareholders in the event of the conversion of their Subunits or
the dissolution and liquidation of the Trust Account as part of the Company’s
plan of dissolution and liquidation, (ii) to purchase Subunits prior to the
consummation of a Business Combination in accordance with the Plan or (iii) to
the Company after it consummates a Business Combination, and (b) for and in
consideration of the Company (1) agreeing to evaluate such Target Business for
purposes of consummating a Business Combination with it or (2) agreeing to
engage the services of the vendor, as the case may be, such Target Business or
vendor agrees that it does not have any right, title, interest or claim of any
kind in or to any monies of the Trust Account (“Claim”) and waives any Claim
it may have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with the Company and will not seek recourse against the
Trust Account for any reason whatsoever. The foregoing letters shall
substantially be in the form attached hereto as Exhibit
D and E,
respectively.
9.3. Insider
Letters. The Company shall not take any action or omit to take any
action which would cause a breach of any of the Insider Letters executed between
each Company Affiliate and the Underwriter and will not allow any amendments to,
or waivers of, such Insider Letters without the prior written consent of the
Underwriter.
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9.4. Amended and Restated
Memorandum and Articles of Association. 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 Amended and Restated Memorandum and Articles of
Association.
9.5. Tender Offer, Proxy and
Other Information. The Company shall provide the Underwriter with
copies of all proxy or tender offer documentation and other information and all
related material sent to Public Shareholders in connection with a Business
Combination. In addition, the Company shall furnish any other state in which the
Offering was registered such information as may be requested by such
state.
9.6. Acquisition/Liquidation of
Trust Account Procedure. The Company agrees that it will comply with
Articles ___ through ___ of its Amended and Restated Memorandum and Articles of
Association in connection with the consummation of a Business Combination or the
failure to consummate a Business Combination within 18 months from the Effective
Date (subject to extension for an additional six-month period, as described in
the Prospectus) (either such date being referred to as the “Termination
Date”).
9.7. Rule
419. The Company agrees that it will use its best efforts to
prevent the Company from becoming subject to Rule 419 under the Act prior to the
consummation of any Business Combination, including, but not limited to, using
its best efforts to prevent any of the Company’s outstanding securities from
being deemed to be a “xxxxx stock” as defined in Rule 3a51-1 under the Exchange
Act during such period.
9.8. Presentation of Potential
Target Businesses. The Company shall cause each of the Company
Affiliates to agree that, in order to minimize potential conflicts of interest
which may arise from multiple affiliations, the Company Affiliates will present
to the Company for its consideration, prior to presentation to any other person
or company, any suitable opportunity to acquire an operating business, until the
earlier of the consummation by the Company of a Business Combination, the
liquidation of the Trust Account or until such time as the Company Affiliates
cease to be affiliates of the Company, subject to any pre-existing fiduciary
obligations the Company Affiliates might have.
10. Representations and
Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this
Agreement shall be deemed to be representations, warranties and agreements at
the Closing Date or Option Closing Date, as applicable, and such
representations, warranties and agreements of the Underwriter and Company,
including the indemnity agreements contained in Section 7 hereof, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriter, the Company or any controlling person,
and shall survive termination of this Agreement or the issuance and delivery of
the Securities to the Underwriter until the earlier of the expiration of any
applicable statute of limitations and the seventh (7th) anniversary of the later
of the Closing Date, at which time the representations, warranties and
agreements shall terminate and be of no further force and
effect.
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11. Effective Date of This
Agreement and Termination Thereof.
11.1. Effective Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
11.2. Termination.
The Underwriter shall have the right to terminate this Agreement at any time
prior to any Closing Date: (i) if any domestic or international event or act or
occurrence has materially disrupted or, in the Underwriter’s sole opinion, will
in the immediate future materially disrupt, general securities markets in the
United States; or (ii) if trading on the New York Stock Exchange, the Amex,
NASDAQ or on the OTC Bulletin Board (or successor trading market) shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities shall have been required on the OTC Bulletin
Board or by order of the Commission or any other government authority having
jurisdiction, or (iii) if the United States shall have become involved in a war
or an increase in existing major hostilities, or (iv) if a banking moratorium
has been declared by a New York State or federal authority, or (v) if a
moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities market, or (vi) if the Company
shall have sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in the Underwriter’s sole opinion,
make it inadvisable to proceed with the delivery of the Units, or (vii) if any
of the Company’s representations, warranties or covenants hereunder are
breached, or (viii) if the Underwriter shall have become aware after the date
hereof of a Material Adverse Effect on the Company, or such adverse material
change in general market conditions, including, without limitation, as a result
of terrorist activities after the date hereof, as in the Underwriter’s sole
judgment would make it impracticable to proceed with the offering, sale and/or
delivery of the Units or to enforce contracts made by the Underwriter for the
sale of the Units.
11.3. Expenses. In
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed by
Section 3.12 hereof.
11.4. Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 7 shall not
be in any way effected by, such election or termination or failure to carry out
the terms of this Agreement or any part hereof.
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12. Miscellaneous.
12.1. Notices. All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered by hand or reputable
overnight courier, delivered by facsimile transmission (with printed
confirmation of receipt) and confirmed, or by electronic transmission via PDF
and shall be deemed given when so mailed, delivered, faxed or transmitted (or if
mailed, two days after such mailing):
If to the
Underwriter:
EarlyBirdCapital,
Inc.
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Fax No.:
___________
Attn:
Xxxxxx Xxxxxx
Email:
xxxxxxx@xxxxx.xxx
With a
copy (which shall not constitute notice) to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(000) 000-0000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
Email:
xxxxxxx@xxxxxxxx.xxx
|
|
If
to the Company, to:
|
000
Xxxxxxxx Xxxxxx, #000
Xxxxx,
Xxxxxxx 00000
Fax No.:
___________
Attn: Ye
(Sophie) Tao
Email:
xxxxxxxxx@xxxxx.xxx
With a copy (which shall not constitute
notice) to:
Loeb
& Loeb, LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Fax No.:
(000) 000-0000
Attn:
Xxxxxxxx Xxxxxxx, Esq.
Email:
xxxxxxxxx@xxxx.xxx
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12.2. Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
12.3. Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
12.4. Entire
Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement)
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof, and supersede all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
12.5. Binding Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Underwriter, the Company and the controlling persons, directors and officers
referred to in Section 7 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained.
12.6. Governing Law, Venue,
etc.
12.6.1. In
connection with Section 5-1401 of the General Obligations Law of the State of
New York, this Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
law that would result in the application of the substantive law of another
jurisdiction. The parties hereto agree that any action, proceeding or
claim arising out of or relating in any way to this Agreement shall be resolved
through final and biding arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitration shall be brought before the AAA
International Center for Dispute Resolution’s offices in New York City, New
York, will be conducted in English and will be decided by a panel of three
arbitrators selected from the AAA Commercial Disputes Panel and that the
arbitrator panel’s decision shall be final and enforceable by any court having
jurisdiction over the party from whom enforcement is sought. The cost
of such arbitrators and arbitration services, together with the prevailing
party’s legal fees and expenses, shall be borne by the non-prevailing party or
as otherwise directed by the arbitrators. The Company hereby
appoints, without power of revocation, Loeb & Loeb, LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Fax No.: (000) 000-0000, Attn: Xxxxxxxx Xxxxxxx, Esq.,
as their respective agent to accept and acknowledge on its behalf service of any
and all process which may be served in any arbitration, action, proceeding or
counterclaim in any way relating to or arising out of this
Agreement. The Company further agrees to take any and all action as
may be necessary to maintain such designation and appointment of such agent in
full force and effect for a period of seven years from the date of the Effective
Date.
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12.6.2. THE
COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON
BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS.
12.6.3. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys’
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
12.7. Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart
of this Agreement by fax or email/.pdf transmission shall constitute valid and
sufficient delivery thereof.
12.8. Waiver, etc.
The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way effect the validity of this Agreement or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
12.9. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriter is
acting solely as an underwriter in connection with the offering of the Company's
securities. The Company further acknowledges that the Underwriter is acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm's length basis and in no event do the parties intend that the
Underwriter acts or be responsible as a fiduciary to the Company, its
management, shareholders, creditors or any other person in connection with any
activity that the Underwriter may undertake or have undertaken in furtherance of
the offering of the Company's securities, either before or after the date
hereof. The Underwriter hereby expressly disclaims any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriter agree that they are each responsible for making
their own independent judgments with respect to any such transactions, and that
any opinions or views expressed by the Underwriter to the Company regarding such
transactions, including but not limited to any opinions or views with respect to
the price or market for the Company's securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the Underwriter with respect to any breach or alleged breach of any fiduciary or
similar duty to the Company in connection with the transactions contemplated by
this Agreement or any matters leading up to such transactions.
[Signature
Page Follows]
EarlyBirdCapital,
Inc.
____________,
2011
Page 42
of 47
If the
foregoing correctly sets forth the understanding between the Underwriter and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
|
Very
Truly Yours,
|
||
| By: |
|
|
|
Name:
|
||
|
Title:
|
||
Agreed
to and accepted
as
of the date first written above:
EARLYBIRDCAPITAL,
INC.
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Signature
Page to Underwriting Agreement, dated ____________, 2011]
