UNDERWRITING AGREEMENT between CAVICO CORP. and RODMAN & RENSHAW, LLC as Representative
between
and
XXXXXX
& XXXXXXX, LLC
as
Representative
___________
__, 2009
Xxxxxx
& Xxxxxxx, LLC
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned, Cavico Corp., a company formed under the laws of Delaware
(collectively with its subsidiaries and affiliates, the “Company”), hereby confirms its
agreement with Xxxxxx & Xxxxxxx, LLC (hereinafter referred to as “you”
(including its correlatives) or the “Representative”) and with the
other underwriters named on Schedule 1 hereto for which the Representative is
acting as representative (the Representative and such other underwriters being
collectively called the “Underwriters” or, individually, an “Underwriter”) as
follows:
(i) 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,
severally and not jointly, to the several Underwriters, an aggregate of
_____________ shares (“Firm
Shares”) of Common Stock, par value $.001 per share (the “Shares”).
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the
number of Firm Shares set forth opposite their respective names on Schedule 1
attached hereto and made a part hereof at a purchase price (net of discounts and
commissions) of [___] per Share (94 % of the per Share offering price). The Firm
Shares are to be offered initially to the public (the “Offering”) at the offering
price set forth on the cover page of the Prospectus (as defined in Section 2.1.1
hereof).
(i) Delivery
and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on
the third (3rd)
Business Day following the effective date (the “Effective Date”) of the
Registration Statement (as defined in Section 2.1.2 below) (or the fourth
(4th)
Business Day following the Effective Date, if the Registration Statement is
declared effective after 4:30 p.m.) or at such earlier time as shall be agreed
upon by the Representative and the Company at the offices of Loeb & Loeb,
LLP counsel to the Underwriters (“Loeb & Loeb LLP”), or at
such other place (or remotely by facsimile or other electronic transmission) as
shall be agreed upon by the Representative and the Company. The hour and date of
delivery and payment for the Firm Shares is called the “Closing Date.”
(ii) Payment
for the Firm Shares shall be made on the Closing Date by wire transfer in
Federal (same day) funds, payable to the order of the Company upon delivery of
the certificates (in form and substance satisfactory to the Underwriters)
representing the Firm Shares (or through the facilities of the Depository Trust
Company (the “DTC”)) for
the account of the Underwriters. The Firm Shares shall be registered in such
name or names and in such authorized denominations as the Representative may
request in writing at least two (2) full Business Days prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Firm Shares
except upon tender of payment by the Representative for all the Firm Shares. The
term “Business Day”
means any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions are authorized or obligated by law to close in New
York City.
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2009
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1.2 Over-allotment
Option.
1.2.1. Option
Shares. For the purposes of covering any over-allotments in
connection with the distribution and sale of the Firm Shares, the Underwriters
are hereby granted, an option to purchase up to [_______] Shares representing
fifteen (15%) percent of the Firm Shares sold in the offering from the Company
(the “Over-allotment
Option”). Such additional
[ ]
Shares, the net proceeds of which will be deposited with the Company’s
account, are hereinafter referred to as “Option Shares.” The purchase
price to be paid for the Option Shares will be the same price per Option Share
as the price per Firm Shares set forth in Section 1.1.1 hereof. The Firm Shares
and the Options Share are hereinafter referred to collectively as the
“Public Securities.”
1.2.2. Exercise of
Option. The Over-allotment Option granted pursuant to Section
1.2.1 hereof may be exercised by the Representative as to all (at any time) or
any part (from time to time) of the Option Shares within 45 days after the
Effective Date. The Underwriters will not be under any obligation to purchase
any Option Shares 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 from the Representative, which must be confirmed in
writing by overnight mail or facsimile or other electronic transmission setting
forth the number of Option Shares to be purchased and the date and time for
delivery of and payment for the Option Shares (the “Option Closing Date”), which
will not be later than five (5) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the
Representative, at the offices of Loeb & Loeb LLP or at such other place
(including remotely by facsimile or other electronic transmission) as shall be
agreed upon by the Company and the Representative. If such delivery and payment
for the Option Shares does not occur on the Closing Date, the Option Closing
Date will be as set forth in the notice. Upon exercise of the Over-allotment
Option, the Company will become obligated to convey to the Underwriters, and,
subject to the terms and conditions set forth herein, the Underwriters will
become obligated to purchase, the number of Option Shares specified in such
notice.
1.2.3. Payment and
Delivery. Payment for the Option Shares will be made on the
Option Closing Date by wire transfer in Federal (same day) funds as follows:
$[ ]
per Option Xxxxx, [00 % of the per option Share offering price], shall be
deposited in the Company’s account and the remaining proceeds shall be paid to
the order of the Company upon delivery to you of certificates (in form and
substance satisfactory to the Underwriters) representing the Option Shares (or
through the facilities of DTC) for the account of the Underwriters. The Option
Shares shall be registered in such name or names and in such authorized
denominations as the Representative may request in writing at least two (2) full
Business Days prior to the Option Closing Date. The Company shall not be
obligated to sell or deliver the Option Shares except upon tender of payment by
the Representative for applicable Option Shares.
__________________,
2009
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2.
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Representations and
Warranties of the Company. The Company represents and
warrants to the Underwriters as of the Applicable Time (as defined below)
and as of the Closing Date and as of the Option Closing Date, if any, as
follows:
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2.3 Disclosures
in Registration Statement.
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2009
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26
2.3.1. 10b-5
Representation. At the respective times the Registration
Statement, the Prospectus and any post-effective amendments thereto become
effective (and at the Closing Date and the Option Closing Date, if
any):
(i) The
Registration Statement, the Prospectus and any post-effective amendments thereto
did and will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in all material
respects conform to the requirements of the Act and the
Regulations;
(ii) Neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, on such dates, do or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The representation and warranty made in
this Section 2.3.1(ii) does not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the
Company with respect to the Underwriters by the Representative expressly for use
in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto. The parties acknowledge and agree that such information
provided by or on behalf of any Underwriter consists solely of the names of the
Underwriters appearing in the “Underwriting and Plan of Distribution” section of
the Prospectus and the following additional disclosure contained in the
“Underwriting” section of the Prospectus: (i) the first paragraph under the
heading “Pricing of Securities”, (ii) the second and third paragraphs under the
heading “Other Terms” and (iii) all paragraphs under the heading “Foreign
Regulatory Restrictions on Purchase of the Common Stock (the “Underwriters’
Information”).
2.3.2. Disclosure of
Agreements. The agreements and documents described in the
Prospectus, the Registration Statement conform to the descriptions thereof
contained therein and there are no agreements or other documents required by the
Act and the Regulations to be described in the Prospectus, the Registration
Statement or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or other
instrument (however characterized or described) to which the Company is a party
or by which it is or may be bound or affected and (i) that is referred to
in the Prospectus, or (ii) is material to the Company’s business, has been
duly authorized and validly executed by the Company, is in full force and effect
in all material respects and is enforceable against the Company and, to the
Company’s knowledge, the other parties thereto, in accordance with its terms,
except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally,
(y) as enforceability of any indemnification or contribution provision may
be limited under the federal and state securities laws, and (z) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefore may be brought. None of such
agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in
default thereunder and, to the best of the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a default thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any 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.
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, except as
disclosed in the Registration Statement.
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2009
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2.3.4. Regulations. The
disclosures in the Registration Statement concerning the effects of Federal,
State, local and all foreign regulation on the Company’s business as currently
contemplated are correct in all material respects.
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 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 (iii) no officer
or director of the Company has resigned from any position with the
Company.
2.4.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, and
except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement and the Prospectus, 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.
2.8 Valid
Issuance of Securities, etc.
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2009
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26
2.8.1. Outstanding
Securities. All issued and outstanding securities of the
Company issued prior to the transactions contemplated by this Agreement 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 authorized Shares conform in all material respects to all
statements relating thereto contained in the Registration Statement and the
Prospectus. The offers and sales of the outstanding Shares were at all relevant
times either registered under the Act and the applicable state securities or
Blue Sky laws or, based in part on the representations and warranties of the
purchasers of such Shares, exempt from such registration
requirements.
2.8.2. Securities Sold Pursuant to
this Agreement. The Public Securities and Representative’s
Securities have been duly authorized for issuance and sale and, when issued and
paid for, will be validly issued, fully paid and non-assessable; the holders
thereof are not and will not be subject to personal liability by reason of being
such holders; the Public 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 Public Securities and the Representative’s
Securities conform in all material respects to all statements with respect
thereto contained in the Registration Statement. The Representative’s Option
constitutes a valid and binding obligation of the Company to issue and sell,
upon exercise thereof and payment of the exercise price therefore, the number
and type of securities of the Company called for thereby in accordance with the
terms thereof and such Representative’s Option is enforceable against the
Company in accordance with its respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (ii) as enforceability
of any indemnification or contribution provision may be limited under the
federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought. When paid for and issued in accordance with
the Representative’s Option, the underlying Shares 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 underlying Shares are
not and will not be subject to the preemptive rights of any holders of any
security of the Company or similar contractual rights granted by the Company;
and all corporate action required to be taken for the authorization, issuance
and sale of the Representative’s Option has been duly and validly
taken.
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2009
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2009
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2.18 Transactions
Affecting Disclosure to FINRA.
2.18.1. Finder’s
Fees. Except as described in the Registration Statement 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 Initial Shareholder 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 of its shareholders that may
affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. Payments Within Twelve
Months. Except as described in the Registration Statement and
the Prospectus, 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 the
prior payment of $25,000 to Xxxxxx & Xxxxxxx LLC, the Representative and
payments to the Underwriters as provided hereunder in connection with the
Offering.
2.18.3. Use of
Proceeds. None of the net proceeds of the Offering will be
paid by the Company to any participating FINRA member or its affiliates, except
as specifically authorized herein.
2.18.4. FINRA
Affiliation. No officer, director or any beneficial owner of
the Company’s unregistered securities has any direct or indirect affiliation or
association with any FINRA member (as determined in accordance with the rules
and regulations of FINRA). The Company will advise the Representative and Loeb
& Loeb LLP if it learns that any officer, director or owner of at least 5%
of the Company’s outstanding Common Stock (or securities convertible into Common
Stock) is or becomes an affiliate or associated person of a FINRA member
participating in the Offering.
Cavico
Corp.
__________________,
2009
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Cavico
Corp.
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2009
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3.
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Covenants of the
Company. The Company covenants and agrees as
follows:
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Cavico
Corp.
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2009
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Cavico
Corp.
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2009
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3.10.1. General Expenses Related to
the Offering. The Company hereby agrees to pay on each of the
Closing Date and the Option Closing Date, if any, to the extent not paid at the
Closing Date, all expenses incident to the performance of the obligations of the
Company under this Agreement, including, but not limited to: (i) the costs
of all mailing and printing of the underwriting documents (including, without
limitation, the Underwriting Agreement, any Blue Sky Surveys and, if
appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement,
Underwriters’ Questionnaire and Power of Attorney), Registration Statements,
Prospectuses and all amendments, supplements and exhibits thereto and as many
preliminary and final Prospectuses as Representative may reasonably deem
necessary; (ii) the costs of preparing, printing and delivering
certificates representing the Shares; (iii) all COBRADesk filing fees
associated with the review of the Offering by FINRA; all fees and expenses
relating to the listing of such Shares on the Nasdaq Capital Market and on such
other stock exchanges as the Company and Representative together determine; (iv)
the fees and expenses of the Company’s legal counsel and other agents and
representatives; (v) up to $5,000 for commemorative lucite tombstones; (vi)
all fees, expenses and disbursements relating to background checks of the
Company’s officers and directors in an amount not to exceed $5,000 per
individual (it being understood that such checks have already been completed
with respect to the current Company officers and directors, and that in the
event that the Company adds additional senior executive officers prior to the
completion of the Offering, the Company will pay up to $5,000 for the expenses
and disbursements for the background checks for each such additional senior
executive officer); (vii) all other costs and expenses incident to the
performance by the Company of its obligations hereunder which are not otherwise
specifically provided for in this Section 3.10.1 including, without limitation,
the Company’s “road-show” expenses; (viii) all fees, expenses and disbursements
relating to the registration or qualification of such Shares under the “blue
sky” securities laws of such states and other jurisdictions as Representative
may reasonably designate (including, without limitation, all filing and
registration fees, and the reasonable fees and disbursements of Representative’s
counsel, it being agreed that such fees and expenses will be limited to: (i) if
the Offering is commenced on either the Nasdaq National Market or the AMEX, the
Company will make a payment by the Company of $5,000 to such counsel at Closing
or (ii) if the Offering is commenced on the Nasdaq Capital Market or on the Over
the Counter Bulletin Board, the Company will make a payment of $15,000 to such
counsel upon the commencement of “blue sky” work by such counsel and an
additional $5,000 at Closing); (ix) the costs and expenses of the financial
public relations firm referred to in Section 3.8 hereof, (x) the fees and
expenses of the transfer agent for the Common Stock, (xi) stock transfer and/or stamp taxes, if
any, payable upon the transfer of securities from the Company to the
Underwriters and (xii) the fees and expenses of the Company’s
accountants. The Representative may also deduct from the net proceeds of the
Offering payable to the Company on the Closing Date, or the Option Closing Date,
if any, the expenses set forth herein to be paid by the Company to the
Representative.
Cavico
Corp.
__________________,
2009
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Cavico
Corp.
__________________,
2009
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4.
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Conditions of
Underwriters’ Obligations. The obligations of the
several Underwriters to purchase and pay for the Shares, 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 each of the
Closing Date and the Option Closing Date, if any, 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:
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(i) Based
solely on a certificate of good standing dated within 5 days of the Closing
Date, the Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware.
(ii) All
issued and outstanding securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof 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
stockholder of the Company arising by operation of law or under the Certificate
of Incorporation. The offers and sales of the outstanding securities were at all
relevant times either registered under the Act or exempt from such registration
requirements. The authorized, and to the extent of Sichenzia Xxxx Xxxxxxxx
Xxxxxxx ’s knowledge, outstanding capital stock of the Company is as set forth
in the Prospectus.
Cavico
Corp.
__________________,
2009
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(iii) The
Shares have been duly authorized and, when issued and paid for, will be validly
issued, fully paid and non-assessable; the holders thereof are not and will not
be subject to personal liability solely by reason of being such holders. The
Shares included in the Shares are not and will not be subject to the preemptive
rights of any holders of any security of the Company arising by operation of law
or under the Certificate of Incorporation. When issued, the Option Shares will
constitute valid and binding obligations of the Company to issue and sell, upon
exercise thereof and payment therefore, the number and type of securities of the
Company called for thereby and the Option Shares, when issued, in each case, are
enforceable against the Company in accordance with their respective terms,
except (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (b) as
enforceability of any indemnification or contribution provision may be limited
under the Federal and state securities laws, and (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought. The certificates representing the
Securities are in due and proper form.
(iv) This
Agreement and the Representative’s Option have each been duly and validly
authorized and, when executed and delivered by the Company, constitute, and the
Representative’s Option Shares has been duly and validly authorized by the
Company and, when executed and delivered, will constitute, the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (b) as enforceability of any indemnification or contribution
provisions may be limited under the Federal and state securities laws, and (c)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought.
(v) The
execution, delivery and performance of this Agreement and the Representative’s
Option Shares and the Lock-up Agreements and compliance by the Company with the
terms and provisions thereof and the consummation of the transactions
contemplated thereby, and the issuance and sale of the securities, do not and
will not, with or without the giving of notice or the lapse of time, or both,
(a) to such counsel’s knowledge, based on representations of the Company
made to such counsel and contained in a certificate provided by an executive
officer of the Company, conflict with, or result in a breach of, any of the
terms or provisions of, or constitute a default under, or result in the creation
or modification of any lien, security interest, charge or encumbrance upon any
of the properties or assets of the Company pursuant to the terms of, any
mortgage, deed of trust, note, indenture, loan, contract, commitment or other
agreement or instrument filed as an exhibit to the Registration Statement,
(b) result in any violation of the provisions of the Certificate of
Incorporation, or (c) to such counsel’s knowledge, violate any statute or
any judgment, order or decree, rule or regulation applicable to the Company of
any court, domestic or foreign, or of any federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company, its
properties or assets.
(vi) The
Registration Statement and the Prospectus and any post-effective amendments or
supplements thereto (other than the financial statements included therein, as to
which no opinion need be rendered) each as of their respective dates complied as
to form in all material respects with the requirements of the Act and
Regulations. The securities conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus. No United
States or state statute or regulation required to be described in the Prospectus
is not described as required (except as to the Blue Sky laws of the various
states, as to which such counsel expresses no opinions), nor are any contracts
or documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement not so described or filed as required (except for the contracts and
documents described in the “Underwriting” section of the Registration Statement,
as to which such counsel expresses no opinions).
Cavico
Corp.
__________________,
2009
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(vii) Based
solely on a notice of effectiveness received from the Commission, the
Registration Statement is effective under the Act. To such counsel’s knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act or applicable state securities
laws.
(viii) The
Company is not and, after giving effect to the Offering and sale of the
Securities and the application of the proceeds thereof as described in the
Registration Statement and the Prospectus, will not be, an “investment company”
as defined in the Investment Company Act of 1940, as amended.
(ix) The
opinion of Sichenzia Xxxx Xxxxxxxx Xxxxxxx shall further include a
statement to the effect that such counsel has participated in conferences with
officers and other representatives of the Company, the Underwriters and the
independent registered public accounting firm of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
contained therein and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus contained therein, solely on the basis of the
foregoing without independent check and verification, no facts have come to the
attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto, at the time the Registration Statement or
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or the Prospectus or any amendment or
supplement thereto, at the time they were filed pursuant to Rule 424(b) or at
the date of such counsel’s opinion, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express no
view and shall not be deemed to have rendered an opinion with respect to
the financial information, statistical data and information and matters
regarding non-United States laws, rules and regulations included in the
Registration Statement or the Prospectus).
(x) The
Company has taken all necessary corporate action to authorize and approve a
reverse stock split of its Common Stock on the basis of one share of Common
Stock for each and every [ten] shares of Common Stock issued and outstanding
prior to the Applicable Time and the reverse stock split has become effective
under the laws of the State of Delaware.
4.2.2. On
the Closing Date, the Representative shall have received the favorable opinion
of [_______________] counsel to the Company, reasonably acceptable to the
Representative, related to, among other things, the descriptions of laws of
Vietnam and the organization of the Company’s Vietnamese Subsidiaries,
affiliates and ownership structure, dated the Closing Date and addressed to the
Representative.
4.2.3. [[Use if there are any non-Vietnamese
Subsidiaries or affiliates] On the Closing Date, the Representative shall
have received the favorable opinion of [_______________] counsel to the Company,
reasonably acceptable to the Representative, related to, among other things, the
descriptions of laws of _____________ and the organization of the Company’s
____________affiliates and ownership structure, dated the Closing Date and
addressed to the Representative.]
Cavico
Corp.
__________________,
2009
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(i) Confirming
that they are independent public 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
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 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 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 GAAP applied on a basis substantially
consistent with that of the audited financial statements of the Company included
in the Registration Statement; (b) at a date not later than five days prior
to the Effective Date, Closing Date or Option 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 December 31, 2008 balance sheet included in the Registration
Statement, other than as set forth in or contemplated by the Registration
Statement, or, if there was any decrease, setting forth the amount of such
decrease, and (c) during the period from December 31, 2008 to a specified
date not later than five days prior to the Effective Date, Closing Date or
Option Closing Date, as the case may be, there was any decrease in revenues, net
earnings or net earnings per 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, or, if there was any such decrease,
setting forth the amount of such decrease;
Cavico
Corp.
__________________,
2009
Page 18 of
26
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company (including a breakdown of commercial paper
and notes payable to banks and related parties);
(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 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 since the Company’s formation 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 you
may reasonably request.
Cavico
Corp.
__________________,
2009
Page 19
of 26
4.5 No Material
Changes. Prior to and on each of the Closing Date and the
Option Closing Date, if any: (i) there shall have been no material adverse
change or development involving a prospective 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 and Prospectus; (ii) no action suit or proceeding,
at law or in equity, shall have been pending or threatened against the Company
or any Initial Shareholder before or by any court or 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 and Prospectus; (iii) no stop order
shall have been issued under the Act and no proceedings therefore shall have
been initiated or threatened by the Commission; and (iv) the Registration
Statement 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 neither the
Registration Statement nor the Prospectus nor any amendment or supplement
thereto shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Cavico
Corp.
__________________,
2009
Page 20
of 26
Cavico
Corp.
__________________,
2009
Page 21
of 26
5.3 Contribution.
Cavico
Corp.
__________________,
2009
Page 22
of 26
6.
|
Default
by an Underwriter.
|
6.1 Default Not Exceeding 10% of
Firm Shares or Option Shares. If any Underwriter or
Underwriters shall default in its or their obligations to purchase the Firm
Shares or the Option Shares, if the Over-allotment Option is exercised,
hereunder, and if the number of the Firm Shares or Option Shares with respect to
which such default relates does not exceed in the aggregate 10% of the number of
Firm Shares or Option Shares that all Underwriters have agreed to purchase
hereunder, then such Firm Shares or Option Shares to which the default relates
shall be purchased by the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
6.2 Default Exceeding 10% of
Firm Shares or Option Shares. In the event that the default
addressed in Section 6.1 relates to more than 10% of the Firm Shares or Option
Shares, you may in your discretion arrange for yourself or for another party or
parties to purchase such Firm Shares or Option Shares to which such default
relates on the terms contained herein. If, within one (1) Business Day after
such default relating to more than 10% of the Firm Shares or Option Shares, you
do not arrange for the purchase of such Firm Shares or Option Shares, then the
Company shall be entitled to a further period of one (1) Business Day within
which to procure another party or parties satisfactory to you to purchase said
Firm Shares or Option Shares on such terms. In the event that neither you nor
the Company arrange for the purchase of the Firm Shares or Option Shares to
which a default relates as provided in this Section 6, this Agreement will
automatically be terminated by you or the Company without liability on the part
of the Company (except as provided in Sections 3.10 and 5 hereof) or the several
Underwriters (except as provided in Section 5 hereof); provided, however, that
if such default occurs with respect to the Option Shares, this Agreement will
not terminate as to the Firm Shares; and provided further that nothing herein
shall relieve a defaulting Underwriter of its liability, if any, to the other
Underwriters and to the Company for damages occasioned by its default
hereunder.
6.3 Postponement of Closing
Date. In the event that the Firm Shares or Option Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or Option
Closing Date for a reasonable period, but not in any event exceeding five (5)
Business Days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment to the
Registration Statement or the Prospectus that in the opinion of counsel for the
Underwriter may thereby be made necessary. The term “Underwriter” as used in
this Agreement shall include any party substituted under this Section 6 with
like effect as if it had originally been a party to this Agreement with respect
to such Securities.
Cavico
Corp.
__________________,
2009
Page 23
of 26
7.2 Right of First
Refusal. The Company agrees that if the Shares are sold in
accordance with the terms of this Underwriting Agreement, the Representative
shall have an irrevocable preferential right for a period of twelve (12) months
from the date the Offering is completed to purchase for its account or to sell
for the account of the Company, or any subsidiary of or successor to the Company
any securities (whether debt or equity or any combination thereof) of the
Company or any such subsidiary or successor which the Company or any such
subsidiary or successor may seek to sell whether with or without or through an
underwriter, placement agent or broker-dealer and whether pursuant to
registration under the Act or otherwise. The Company and any such subsidiary or
successor will consult the Representative with regard to any such proposed
financing and will offer the Representative the opportunity to purchase or sell
any such securities on terms not more favorable to the Company or any such
subsidiary or successor, as the case may be, than it or they can secure
elsewhere. If the Representative fails to accept such offer within 10 business
days after the mailing of a notice containing the material terms of the proposed
financing proposal by registered mail or overnight courier service addressed to
the Representative, then the Representative shall have no further claim or right
with respect to the financing proposal contained in such notice. If, however,
the terms of such financing proposal are subsequently modified in any material
respect, the preferential right referred to herein shall apply to such modified
proposal as if the original proposal had not been made. The Representative’s
failure to exercise its preferential right with respect to any particular
proposal shall not affect its preferential rights relative to future proposals.
The Company shall have the right, at its option, to designate the Representative
as lead underwriter or co-manager of any underwriting group or co-placement
agent of any proposed financing in satisfaction of its obligations hereunder,
and the Representative shall be entitled to receive as its compensation 50% of
the compensation payable to the underwriting or placement agent group when
serving as co-manager or co-placement agent and 33% of the compensation payable
to the underwriting or placement agent group when serving as co-manager or
co-placement agent with respect to a proposed financing in which there are three
co-managing or lead underwriters or co-placement agents.
8.
|
Effective
Date of this Agreement and Termination
Thereof.
|
8.1 Effective
Date. This Agreement shall become effective when both the
Company and the Representative have executed the same and delivered counterparts
of such signatures to the other party.
8.2 Termination. You
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 your 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 NASDAQ, the NASDAQ
Global Market or the NASDAQ Capital Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required by
FINRA 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
new war or an increase in 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 markets, 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 your
opinion, make it inadvisable to proceed with the delivery of the Firm Shares or
Option Shares, or (vii) if the Company is in material breach of any of its
representations, warranties or covenants hereunder, or (viii) if the
Representative shall have become aware after the date hereof of such a material
adverse change in the conditions or prospects of the Company, or such adverse
material change in general market conditions as in the Representative’s judgment
would make it impracticable to proceed with the offering, sale and/or delivery
of the securities or to enforce contracts made by the Underwriters for the sale
of the securities.
Cavico
Corp.
__________________,
2009
Page 24
of 26
8.3 Expenses. Except
in the case of a default by the Underwriters, pursuant to Section 6.2 above, 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 Company shall be obligated to pay to the Underwriters
their actual and accountable out of pocket expenses related to the transactions
contemplated herein then due and payable (including the fees and disbursements
of Loeb & Loeb LLP up to $_________).
8.4 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 5 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.
If to the
Representative:
Xxxxxx
and Xxxxxxx, LLC
0000
Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Fax No.:
000.000.0000
Copy
to:
Loeb
& Loeb LLP LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxxx X. Xxxxxxxx, Esq.
Fax:
000-000-0000
If to the
Company:
Cavico
Corp..
00000
Xxxxx Xxxx., Xxxxx 0000
Xxxxxxxxxx
Xxxxx, XX
Fax:
714-__________
Copy
to:
Cavico
Corp.
__________________,
2009
Page 25
of 26
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxxx, Esq.
Fax:
000-000-0000
9.6 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or summons to be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 11 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim. 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.
Cavico
Corp.
__________________,
2009
Page 26
of 26
If the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
Very
truly yours,
CAVICO
CORP.
By:
Name:
Title:
Accepted
on the date first above written.
XXXXXX
& XXXXXXX, LLC
By:
Name:
Title: