5,000,000 Units KOREA MILESTONE ACQUISITION CORP. UNDERWRITING AGREEMENT
5,000,000
Units
__________
__, 2008
Broadband
Capital Management LLC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
As
Representative of the Underwriters
named
on Schedule
A
hereto
Ladies
and Gentlemen:
Korea
Milestone Acquisition Corp., a Cayman Islands corporation (“Company”),
hereby confirms its agreement with Broadband Capital Management LLC
(“Broadband”
or
the
“Representative”)
and
with the other underwriters named on Schedule A
hereto
for which Broadband is acting as representative (the Representative and the
other underwriters being collectively referred to herein as the “Underwriters”
or,
individually, an “Underwriter”)
as
follows:
1. Purchase
and Sale of Securities.
|
1.1.
|
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 several Underwriters, severally and not jointly, an aggregate of
5,000,000 units (the “Firm
Units”)
of the
Company’s securities at a purchase price (net of discounts and commissions,
$.0.80 of which shall be deposited into the Trust Account (as defined below))
of
$18.60 per Firm Unit. The Underwriters, severally and not jointly, agree to
purchase from the Company the number of Firm Units set forth opposite their
respective names on Schedule A
attached
hereto and made a part hereof at a purchase price (net of discounts and
commissions ($0.80 of which shall be deposited into the Trust Account pursuant
to Section 1.5)) of $18.60 per Firm Unit. The Firm Units are to be offered
initially to the public (the “Offering”)
at the
offering price of $20.00 per Firm Unit. Each Firm Unit consists of two
shares of the Company’s ordinary shares, par value $.0001 per share (the
“Ordinary
Shares”),
and
one warrant to purchase one Ordinary Share (the “Warrant(s)”).
The Ordinary Shares and the Warrants included in the Firm Units will not be
separately transferable until the 45th
day
after the earlier to occur of (i) the termination of the underwriters’
over-allotment option or (ii) the exercise in full by the underwriters of that
option (as defined herein), unless Broadband determines that an earlier date
is
acceptable, in both instances subject to the Company having filed the Report
of
Foreign Private Issuer on Form 6-K and having issued a press release announcing
when such separate trading will begin. In no event will the Ordinary Shares
and
Warrants be traded separately until the Company has filed a Report of Foreign
Private Issuer on Form 6-K with the Securities and Exchange Commission (the
“Commission”)
containing an audited balance sheet reflecting its receipt of the gross proceeds
of the Offering. The Company will file the Report of Foreign Private Issuer
on
Form 6-K promptly upon the consummation of the Offering, which is anticipated
to
take place within four business days from the date of the Prospectus. If the
Over-Allotment Option (as herein defined) is exercised following the initial
filing of such Report of Foreign Private Issuer on Form 6-K, a second or amended
Report of Foreign Private Issuer on Form 6-K will be filed to provide updated
financial information to reflect the exercise of the Over-Allotment Option.
Each
Warrant entitles its holder to purchase one Ordinary Share for $6.00 per share
during the period commencing on the later of: (i) the consummation by the
Company of a Business Combination (as defined below) or (ii) one year from
the
effective date (the “Effective
Date”)
of the
Registration Statement (as defined below) and terminating on the five-year
anniversary of the Effective Date. As used herein, the term “Business
Combination”
shall
have the same meaning as set forth in the Registration Statement. The Company
has the right to redeem the Warrants, in whole but not in part, upon not less
than thirty (30) days’ written notice at a price of $0.01 per Warrant at any
time; provided, however, that (i) the last sale price of the Ordinary Shares
has
been at least $14.25 for any twenty (20) trading days within a thirty (30)
trading day period ending on the third Business Day prior to the day on which
notice is given and (ii) an
effective registration statement covering the Ordinary Shares issuable upon
exercise of the Warrants is current and available throughout the 30-day notice
of redemption period.
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.
Broadband
Capital Management LLC
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1.1.2. Payment
and Delivery.
Delivery and payment for the Firm Units shall be made at 10:00 A.M., New York
time, on the third Business Day (as elsewhere defined) following the Effective
Date (or the fourth 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 the Representative or at such other place as shall be agreed upon
by
the Representative 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 at the
Representative’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. The
amount of $99,000,000 ($113,550,000 if the Over-allotment Option (as defined
in
Section 1.2) is exercised in full) of the proceeds received by the Company
for
the Firm Units and the Private Placement (as defined in Section 1.4) shall
be
deposited into the trust account (the “Trust
Account”)
established by the Company for the benefit of the public shareholders and the
Underwriters, as described in the Registration Statement and pursuant to the
terms of an Investment Management Trust Agreement (the “Trust
Agreement”),
which
amount includes up to $4,000,000 ($0.80 per Firm Unit; $4,600,000 if the
Over-allotment Option is exercised in full, which represents $0.80 per Option
Unit (as defined below)), payable to the Underwriters as contingent compensation
upon consummation of a Business Combination (subject to Section 1.5 hereof).
The
remaining proceeds (less commissions, expense allowance and actual expense
payments or other fees payable pursuant to this Agreement), if any, shall be
paid to the order of the Company upon delivery to the Representative of
certificates (in form and substance satisfactory to the Underwriters)
representing the Firm Units (or through the facilities of the Depository Trust
Company (the “DTC”))
for
the account of the Underwriters. The Firm Units shall be registered in
such name or names and in such authorized denominations as the Representative
may request in writing at least two Business Days prior to the Closing
Date. The Company will permit the Representative to examine and package
the Firm Units for delivery, at least one full Business Day prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Firm Units
except upon tender of payment by the Representative for all the Firm
Units.
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Capital Management LLC
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1.2. Over-Allotment
Option.
1.2.1. Option
Units.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Units, the Underwriters are hereby granted,
severally and not jointly, an option to purchase up to an additional
750,000 units
from the Company (the “Over-allotment
Option”).
Such additional 750,000 units shall be identical in all respects to the Firm
Units and are hereinafter referred to as “Option
Units.”
The Firm Units and the Option Units are hereinafter collectively referred to
as
the “Units”
and
the
Units, 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.”
The purchase price to be paid for each Option Unit (net of discounts and
commissions) will be $18.60 per Option Unit (with $0.80 of the underwriting
discount being deposited in the Trust Account pursuant to Section 1.5). The
Option Units are to be offered initially to the public at the offering price
of
$20.00 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 Representative as to all (at any time) or any part (from time
to time) of the Option Units within 45 days after the Effective Date. The
Underwriters will not be under any obligation to purchase any Option Units
prior
to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company
from
the Representative, which must be confirmed in writing by overnight mail or
facsimile transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of, and payment for, the Option Units, which
will not be later than five (5) 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 the Representative or
at
such other place and in such other manner as shall be agreed upon by the Company
and the Representative. If such delivery and payment for the Option Units
does not occur on the Closing Date, the date and time of the closing for such
Option Units will be as set forth in the notice (hereinafter the “Option
Closing Date”).
Upon exercise of the Over-allotment Option, the Company will become obligated
to
convey to the Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the number of Option
Units specified in such notice.
1.2.3. Payment
and Delivery.
Payment for the Option Units shall be made on the Option Closing Date at the
Representative’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, by
deposit of the sum of $18.60 per Option Unit (with $0.80 of the underwriting
discount being deposited into the Trust Account as set forth in Section 1.5)
in
the Trust Account pursuant to the Trust Agreement upon delivery to the
Representative of certificates (in form and substance satisfactory to the
Underwriters) representing the Option Units (or through the facilities of DTC)
for the account of the Underwriters. The certificates representing the Option
Units to be delivered will be in such denominations and registered
in such
names as the Representative requests not less than two Business Days prior
to
the Closing Date or any Option Closing Date, as the case may be, and will be
made available to the Representative for inspection, checking and packaging
at
the aforesaid office of the Company’s transfer agent or correspondent not less
than one full Business Day prior to such Closing Date or Option Closing
Date.
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1.3.
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Representative’s
Purchase Option.
|
1.3.1. Purchase
Option.
The Company hereby agrees to issue and sell to the Representative (and/or its
designees) on the Closing Date an option (“Representative’s
Purchase Option”)
to
purchase up to an aggregate of 375,000 units (the “Representative’s
Units”)
for an
aggregate purchase price of $100.00. The Representative’s Purchase Option
shall be exercisable, in whole or in part, commencing twelve months from the
Effective Date and expiring on the five-year anniversary of the Effective Date
at an initial exercise price per Representative’s Unit of $25.00, which is equal
to one hundred and twenty-five percent (125%) of the initial public offering
price of a Unit. The Representative’s Purchase Option, the
Representative’s Units, the Ordinary Shares (the “Representative’s
Shares”)
and
the Warrants (the “Representative’s
Warrants”)
included in the Representative’s Units and the Ordinary Shares issuable upon
exercise of the Representative’s Warrants are hereinafter referred to
collectively as the “Representative’s
Securities.”
The Public Securities and the Representative’s Securities are hereinafter
referred to collectively as the “Securities.”
1.3.2. Delivery
and Payment.
Delivery of and payment for the Representative’s Purchase Option shall be made
on the Closing Date. The Company shall deliver to the Representative and
its designees, upon payment therefor, certificates for the Representative’s
Purchase Option in the name or names and in such authorized denominations as
the
Representative may request.
1.4. Private
Placement.
Prior
to the Effective Date, Sang-Xxxx Xxx, our Chairman and Chief Executive Officer
(the “Placement
Investor”)
shall
purchase from the Company pursuant to the Subscription Agreement (as defined
in
Section 2.25.2 hereof), 2,307,692 warrants at a purchase price of $1.30 per
Placement Warrant in a Private Placement (the “Private
Placement”)
intended to be exempt from registration under Section 4(2) of the Securities
Act
of 1933, as amended (the “Act”).
The
warrants purchased in the Private Placement (the “Placement
Warrants”)
will
be identical to the Warrants except that the Placement Warrants (i) will not
be
transferable or salable by the Placement Investor (subject to limited exceptions
including the transferee agreeing to be bound to such transfer restrictions)
until the Company complete its initial business combination, (ii) are
exercisable for cash or on a cashless basis at the holder’s option and (iii)
will be non-redeemable so long as they are held by the Placement Investor or
his
permitted transferees. The Placement Warrants and Ordinary Shares issuable
upon
exercise of the Placement Warrants are hereinafter referred to collectively
as
the “Placement
Securities.”
No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the Private Placement. None of the Placement
Securities may be sold, assigned or transferred by the Placement Investor until
after consummation of a Business Combination. The Placement Investors shall
have
no right to any liquidation distributions with respect to any portion of the
Placement Securities in the event the Company. The Placement Investor shall
not
have redemption rights with respect to the Placement Securities.
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1.5. Contingent
Portion of Underwriters’ Discount.
The
Representative, on behalf of itself and the other Underwriters, agrees that
4%
of the gross proceeds from the sale of the Firm Units ($4,000,000) and the
sale
of any Option Units (an additional $600,000 if the Over-allotment Option is
exercised in full) (collectively, such amounts are the “Contingent
Discount”)
will
be deposited in and held in the Trust Account and payable to the Representative,
In the event that the Company is unable to consummate a Business Combination
and
Continental Stock Transfer & Trust Company (the “Trustee”), the trustee of
the Trust Account, commences liquidation of the Trust Account as provided in
the
Trust Agreement, the Representative, on behalf of itself and the other
Underwriters, agrees that (i) the several Underwriters shall forfeit any rights
or claims to the Contingent Discount; and (ii) the Contingent Discount, together
with the all other amounts on deposit in the Trust Account, shall be distributed
on a pro-rata basis among the holders of the IPO Shares.
|
1.6.
|
Working
Capital; Interest on Trust.
|
1.6.1. Working
Capital.
Upon
consummation of the Offering, $320,000 (the “Working
Capital”),
of
the net proceeds of the Offering and Private Placement will be released to
the
Company to fund the working capital requirements of the Company.
1.6.2. Interest
Income.
Prior
to the Company’s consummation of a business combination or the Company’s
liquidation, interest earned on the Trust Account may be released (i) to the
Company pay any taxes incurred by the Company , (ii) to redeeming shareholders
voting against the extended period, as more fully described in the prospectus,
and (iii) to the Company, from time to time, to fund its working capital and
general corporate requirements in an amount not to exceed $1,500,000,
provided
however,
that
the Company may not withdraw any interest to fund its working capital and
general corporate requirements if such withdrawal would cause the balance of
the
Trust Account to fall below $99,000,000 (or $113,550,000 if the Over-allotment
Option is exercised in full).
2. Representations
and Warranties of the Company.
The Company represents and warrants to the Underwriters as follows:
2.1. Filing
of Registration Statement.
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Capital Management LLC
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2.1.1. Pursuant
to the Act.
The Company has filed with the Commission a registration statement and an
amendment or amendments thereto, on Form F-1 (File No. 333-______),
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 Representative’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. The conditions for use of Form F-1 to register
the Offering under the Act, as set forth in the General Instructions to such
Form, have been satisfied. 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 [__________] for distribution by the Underwriters (together
the “Sale
Preliminary 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 Representative
has
determined that at the Time of Sale the Sale Preliminary 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 Sale Preliminary
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 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 Ordinary Shares and the Warrants. The registration of the
Units, Ordinary Shares and Warrants under the Exchange Act has been declared
effective by the Commission on the date hereof.
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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 Sale Preliminary 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.
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 and the Option Closing Date, if any,
the Registration Statement, the Sale Preliminary 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.
Neither the Registration Statement, the Sale Preliminary Prospectus nor any
Preliminary Prospectus or the Prospectus contained therein, nor any amendment
or
supplement thereto, on their respective dates, nor the Sale Preliminary
Prospectus as of the Time of Sale did or will contain any untrue statement
of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein (in light of the circumstances
under
which they were made), not misleading. When any Preliminary Prospectus or
Sale Preliminary Prospectus was first filed with the Commission (whether filed
as part of the Registration Statement for the registration of the Securities
or
any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when
any amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Prospectus or Sale Preliminary Prospectus and any amendments
thereof and supplements thereto complied or will have been corrected in the
Sale
Preliminary Prospectus and the Prospectus to comply in all material respects
with the applicable provisions of the Act and the Regulations and did not and
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The representation and warranty made in this Section 2.3.1
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, the Sale Preliminary Prospectus or Prospectus or any amendment
thereof or supplement thereto,
which
information, it is agreed, shall consist solely of the names of the several
Underwriters and the subsections captioned “Pricing
of Securities” 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
Sale
Preliminary 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 Sale Preliminary 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.
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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 Sale Preliminary 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 Sale Preliminary 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; (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
Sale
Preliminary Prospectus
and the
Prospectus.
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2.4.2. Recent
Securities Transactions, etc. Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Sale Preliminary 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.
2.5. Independent
Accountants.
Xxxxxxxxx Xxxx & Co., PC (“Xxxxxxxxx”), whose report is filed with the
Commission as part of the Registration Statement and included in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
are
independent registered public accountants as required by the Act, the
Regulations and the Public Company Accounting Oversight Board (including
the rules and regulations promulgated by such entity, the “PCAOB”).
To
the Company’s knowledge, Xxxxxxxxx is duly registered and in good standing with
the PCAOB. Xxxxxxxxx
has not, during the periods covered by the financial statements included in
the
Registration Statement, the Sale Preliminary 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 Sale Preliminary 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 the Regulations,
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
Sale
Preliminary Prospectus or the Prospectus.
The
Registration Statement, the Sale Preliminary 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
Sale
Preliminary 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 Sale Preliminary 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.
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2.7. Authorized
Capital; Options, etc.
The Company had at the date or dates indicated in each of the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, as the case
may
be, duly authorized, issued and outstanding capitalization as set forth in
the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. Based on the assumptions stated in the Registration Statement,
the Sale Preliminary 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 Sale
Preliminary Prospectus and the Prospectus, on the Effective Date and on the
Closing Date and the Option Closing Date, if any, 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.
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 Sale Preliminary Prospectus
and the Prospectus. All offers and sales 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, based in part on the
representations and warranties of the purchasers of such Ordinary Shares, exempt
from such registration requirements.
2.8.2. Securities
Sold.
The Securities have been duly authorized and reserved for issuance and when
issued and paid for, will be validly issued, fully paid and non-assessable;
the
holders thereof are not and will not be subject to personal liability by reason
of being such holders; the Securities are not and will not be subject to the
preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company; and all corporate action required
to
be taken for the authorization, issuance and sale of the Securities has been
duly and validly taken. The Securities conform in all material respects to
the descriptions thereof contained in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, as the case may be. When
issued, the Representative’s Purchase Option, the Representative’s Warrants and
the Warrants will constitute valid and binding obligations of the Company to
issue and sell, upon exercise thereof and payment of the respective exercise
prices therefor, the number and type of securities of the Company called for
thereby in accordance with the terms thereof and such Representative’s Purchase
Option, Representative’s Warrants and Warrants are enforceable against the
Company in accordance with their respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (ii) as enforceability of
any indemnification or contribution provision may be limited under 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 Representative’s Purchase Option, the Representative’s Warrants and the
Warrants have been reserved for issuance upon the exercise of the Option and
Warrant, respectively, 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.
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2.8.3. Placement
Warrants.
The
Placement Warrants constitute valid and binding obligations of the Company
to
issue and sell, upon exercise thereof and payment of the respective exercise
prices therefor, the number and type of securities of the Company called for
thereby in accordance with the terms thereof, and such Placement Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under 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 Placement Warrants have been reserved and, when issued in
accordance with the terms of the Placement Warrants, will be duly and validly
authorized, validly issued, fully paid and non-assessable, and the holders
thereof are not and will not be subject to personal liability by reason of
being
such holders.
2.8.4. No
Integration.
Neither
the Company nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Act or the Regulations with the offer and sale of the Securities pursuant
to the Registration Statement.
2.9. Registration
Rights of Third Parties.
Except as set forth in the Registration Statement, the Sale Preliminary
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 Services Agreement (as defined in Section 3.7.2
hereof), the Subscription Agreement (as defined in Section 2.25.2 hereof),
the
Representative’s Purchase Option (as defined in Section 1.3.1), the Escrow
Agreement (as defined in Section 2.25.3 hereof) and the Registration Rights
Agreement by and among the Company, Continental Stock Transfer and Trust Company
and the Initial Shareholders (the “Registration
Rights Agreement”)
have
been duly and validly authorized, executed and delivered by the Company and
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 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.
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2.11. No
Conflicts, etc.
The execution, delivery, and performance by the Company of this Agreement,
the
Warrant Agreement, the Trust Agreement, the Services Agreement, the Subscription
Agreement, the Representative’s Purchase Option, the Escrow Agreement and the
Registration Rights Agreement, the consummation by the Company of the
transactions herein and therein contemplated and the compliance by the Company
with the terms hereof and thereof do not and will not, with or without the
giving of notice or the lapse of time or both: (i) result in a breach 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; 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 or business.
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 Sale Preliminary Prospectus and the
Prospectus. The disclosures in the Registration Statement, the Sale
Preliminary 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.
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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 Agreement, the Services
Agreement, the Representative’s Purchase Option, the Registration Rights
Agreement and the Escrow Agreement and as contemplated by the Registration
Statement, the Sale Preliminary 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.
All information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s officers and directors (the “Directors/Officers”)
and
Initial Shareholders (as defined below) immediately prior to the Offering and
provided to the Underwriters as well as the biographies attached as exhibits
to
each person’s Insider Letter (as defined in Section 2.25.1) is true and
correct and the Company has not become aware of any information which would
cause the information disclosed in the questionnaires completed by the
Directors/Officers and Initial Shareholders to become inaccurate and
incorrect.
2.15. Litigation;
Governmental Proceedings.
There is no action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to the best of the Company’s
knowledge, threatened against, or involving the Company or, to the best of
the
Company’s knowledge, any of the Directors/Officers or any of the shareholders of
the Company immediately prior to the Offering ( the “Initial
Shareholders”)
which
has not been disclosed in the Registration Statement, the Questionnaires, the
Sale Preliminary Prospectus and the Prospectus.
2.16. Good
Standing.
The Company has been duly organized and is validly existing as a corporation
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 Company, its business, assets
or
operations.
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 target business or their representatives
or had any 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 suitable acquisition candidate
for the Company.
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2.18. Transactions
Affecting Disclosure to FINRA.
2.18.1. Except
as
described in the Registration Statement, the Sale Preliminary 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 Broadband in
connection with the Offering.
2.18.3. No
Directors/Officers, or any direct or indirect beneficial owner of any class
of
the Company’s securities, including the Initial Shareholders and holders of
securities purchased in the Private Placement (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. 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. 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 Representative’s Securities or Placement Securities 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
with respect to Broadband, 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.
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2.18.8. 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. No
FINRA
member intending to participate in the Offering has a conflict of interest
with
the Company. For this purpose, a “conflict of interest” exists when a member of
FINRA and/or its associated persons, parent or affiliates in the aggregate
beneficially own 10% or more of the Company’s outstanding subordinated debt or
common equity, or 10% or more of the Company’s preferred equity. “Members
participating in the Offering” include managing agents, syndicate group members
and all dealers which are members of FINRA.
2.18.10. Except
with respect to Broadband 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.
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
on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Registration Statement, the Sale Preliminary Prospectus
or
Prospectus 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 in 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 on the condition (financial or otherwise), prospects, earnings,
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
by
the Registration Statement, the Sale Preliminary Prospectus or Prospectus.
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 on the Company or the assets, business or
operations of the Company as reflected in any of the financial statements
contained in the Registration Statement and the Prospectus or (iii) if not
continued in the future, might adversely affect the assets, business, operations
or prospects 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.
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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.
2.22. Patriot
Act.
Neither
the Company
nor any Company Affiliate has violated: (i) the Bank Secrecy Act, as amended,
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 Representative or to its counsel shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
2.24. Warrant
Agreement.
The Company has entered into a warrant agreement with respect to the Warrants
and the Placement Warrants with Continental Stock Transfer & Trust Company
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
noncompete 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
Letter”),
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 Sale Preliminary
Prospectus and Prospectus.
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2.25.2. Subscription
Agreement.
The
Placement Investor has executed and delivered a subscription agreement, annexed
as an exhibit to the Registration Statement (the “Subscription
Agreement”),
pursuant to which the Placement Investor has, among other things, agreed to
purchase 2,307,692 Placement Warrants. Pursuant to the Subscription Agreement,
the Placement Investor have waived any and all rights and claims they may have
to any proceeds, and any interest thereon, held in the Trust Account in respect
of the Placement Securities in the event that a Business Combination is not
consummated and the Trust Account is liquidated in accordance with the terms
of
the Trust Agreement.
2.25.3. Escrow
Agreement.
The Company has caused the Initial Shareholders, to the extent they own Ordinary
Shares and Warrants of the Company prior to the Offering, to enter into an
escrow agreement (the “Escrow
Agreement”)
with
Continental Stock Transfer & Trust Company (the “Escrow
Agent”)
substantially in the form filed as an exhibit to the Registration Statement
whereby the Ordinary Shares and Placement Warrants owned by such parties prior
to the Offering will be held in escrow by the Escrow Agent for a period (the
“Escrow
Period”)
commencing on the Effective Date and (i) for the Ordinary Shares, expiring
on
the first anniversary of the consummation of the Business Combination; and
(ii)
for the Placement Warrants, expiring upon consummation of the Business
Combination. During the Escrow Period, such parties shall be prohibited
from selling or otherwise transferring such securities (except (a) to
spouses and children of such parties and trusts established for their benefit
or
(b) after the consummation of a Business Combination, and solely with
regards to the Ordinary Shares, to participate in a transaction whereby all
the
outstanding Ordinary Shares of the Company are exchanged or converted into
cash
or another entity’s securities; provided, however, such Initial Shareholders
shall retain the right to vote such Ordinary Shares, as applicable. 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
Broadband, such consent not to be unreasonably withheld.
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 Placement substantially in the form
filed as an exhibit to the Registration Statement.
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2.27. Warrant
Purchase Commitment.
Sang-Xxxx Xxx, our Chairman and Chief Executive Officer, or his affiliate,
has
entered into a Warrant Purchase Commitment with Broadband and Daewoo Securities
Inc. together in the form filed as an exhibit to the Registration Statement
in
accordance with the guidelines of Rule 10b5-1 of the Exchange Act, pursuant
to
which Xx. Xxx or his affiliate will collectively purchase up to 5,000,000
warrants, representing all of the warrants we are selling in this offering,
as
more fully described in the Registration Statement.
2.28. Covenants
Not to Compete.
No Company Affiliate is subject to any noncompetition agreement or
non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be a director, officer or employee of the
Company.
2.29. 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.
2.30. Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.31. 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 Sale Preliminary Prospectus and the Prospectus which is not so described
and
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 Sale Preliminary 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.
2.32. 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.
2.33. Xxxxxxxx-Xxxxx.
The
Company is in material compliance with the provisions of the Xxxxxxxx-Xxxxx
Act
of 2002, as amended, 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.
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2.34. Quotation
of the Public Securities on the NASDAQ Global Market.
As of
the Effective Date, the Public Securities have been authorized for quotation
on
the NASDAQ Global Market and, to the Company’s knowledge, no proceedings have
been instituted or threatened which would affect, 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 NASDAQ Global Market.
2.35. Definition
of “Knowledge”.
As
used
in herein, the term “knowledge
of the Company”
(or
similar language) shall mean the knowledge of the officers and directors of
the
Company who are named in the Sale Preliminary Prospectus and Prospectus, 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 Representative, 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 Representative 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 Sale
Preliminary 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 Sale Preliminary Prospectus and Prospectus to comply with
the
Act, the Company will notify the Representative 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 Sale
Preliminary 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
Representative) 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, or until such earlier time
upon which the Company is required to be liquidated and dissolved, the Company
will use its best efforts to maintain the registration of the Units, Ordinary
Shares and Warrants (in the case of the Warrants, until the Warrants expire
and
are no longer exercisable) under the provisions of the Exchange Act. The
Company will not deregister the Units, Ordinary Shares or Warrants under the
Exchange Act without the prior written consent of Broadband.
3.2.4. 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 the Xxxxxxxx-Xxxxx Act
of
2002 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 Global Market, NASDAQ Capital Market or AMEX, the
Company will endeavor in good faith, in cooperation with the Representative,
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 Representative 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. In
each jurisdiction where such qualification shall be effected, the Company will,
unless the Representative 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.
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
Sale
Preliminary 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 Representative 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. Effectiveness
and Events Requiring Notice to the Representative.
The Company will use its best efforts to cause the Registration Statement to
become and remain effective and will notify the Representative 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
Sale Preliminary Prospectus or the Prospectus untrue or that requires the making
of any changes in the Registration Statement, the Sale Preliminary Prospectus
and Prospectus in order to make the statements therein, (with respect to the
Prospectus and the Sale Preliminary 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.
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3.6. Review
of Financial Statements.
Until the earlier 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, 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 furnishing of the Company’s Report of
Foreign Private Issuer on Form 6-K with respect to quarterly financial
information 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 that the Business Combination is fair
to
the Company’s shareholders from a financial perspective.
3.7.2. Administrative
Services.
The Company has entered into an agreement (the “Services
Agreement”)
with
SF Venture Town Co. Ltd. in the form filed as an exhibit to the Registration
Statement pursuant to which SF Venture Town Co. Ltd. will
make
available to the Company general and administrative services including office
space, utilities, receptionist and secretarial support for the Company’s use for
$7,500 per month.
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
the
Initial Shareholders shall be entitled to reimbursement from the Company for
their out-of-pocket expenses incurred on the Company’s behalf, which includes an
aggregate of $250,000 in non-interest bearing unsecured loans which were made
to
the Company prior to the effective date of the Registration Statement, and
are
due within 15 days following the Company’s consummation of the Offering, and
other expenses incurred by them in connection with seeking and consummating
a
Business Combination.
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3.8. Secondary
Market Trading and Standard & Poor’s.
In the
event the Public Securities are not listed on the New York Stock Exchange or
AMEX or quoted on the NASDAQ Global Market or NASDAQ Capital Market: (a) the
Company will apply to be included in Standard and Poor’s Daily News and
Corporation Records Corporate Descriptions for a period commencing on the
Effective Date and expiring on the fifth anniversary of the consummation of
a
Business Combination, (b) 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 Representative; 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
Representative to obtain a secondary market trading exemption I such other
states as may be requested by the Representative.
3.9. Financial
Public Relations Firm.
Promptly after the execution of a definitive agreement for a Business
Combination, the Company shall retain a financial public relations firm
reasonably acceptable to the Representative for a term to be agreed upon by
the
Company and the Representative.
3.10. Reports
to the Representative.
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 Representative (Attn: T. Xxxxx Xxxxxx, Managing
Director) 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
Representative: (i) a copy of each periodic report the Company shall be required
to file with or furnish to 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 Form 6-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; (v) a copy of monthly statements, if any,
setting forth such information regarding the Company’s results of operations and
financial position (including balance sheet, profit and loss statements and
data
regarding outstanding purchase orders) as is regularly prepared by management
of
the Company; and (vi) such additional documents and information with
respect to the Company and the affairs of any future subsidiaries of the Company
as the Representative may from time to time reasonably request; provided that
the Representative shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and its counsel in connection with the Representative’s receipt
of such information. Documents filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”)
shall
be deemed to have been delivered to the Representative pursuant to this
section.
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3.10.2. Transfer
Sheets.
For a period of five years following the Effective Date or until such earlier
time upon which the Company is required to be liquidated, the Company shall
retain a transfer and warrant agent acceptable to the Representative (the
“Transfer
Agent”)
and
during the two (2) year period following the Closing Date, will furnish to
the
Underwriters at the Company’s sole cost and expense such transfer sheets of the
Company’s securities as the Representative may request, including the daily and
monthly consolidated transfer sheets of the Transfer Agent and DTC.
Continental Stock Transfer & Trust Company is acceptable to the
Underwriters. In addition, for a period of two (2) years from the Closing Date,
the Company, at its expense, shall provide the Representative a subscription
to
the Company’s weekly Depository Transfer Company Security Position
Reports.
3.10.3. Secondary
Market Trading Survey.
So long
as the Public Securities are not listed or quoted, as the case may be, on the
New York Stock Exchange, AMEX, the NASDAQ Global Market or NASDAQ Capital
Market, or until such earlier time upon which the Company is required to be
liquidated, the Company shall engage Ellenoff Xxxxxxxx & Schole LLP
(“EG&S”),
for
an initial fee of $5,000, plus expenses, payable on the Closing Date, to deliver
and update to the Underwriters on a timely basis, but in any event on the
Effective Date and at the beginning of each fiscal quarter for an additional
$5,000 per quarter, plus expenses, a written report detailing those states
in
which the Public Securities may be traded in non-issuer transaction under the
Blue Sky laws of the fifty States (the “Secondary
Market Trading Survey”).
3.11. Disqualification
of Form F-1 and F-3 and/or S-1 and S-3.
For a period equal to seven
years from the date hereof, the Company will not take or fail to take any action
or actions which may prevent or disqualify the Company’s use of Form F-1 or F-3
and/or Form S-1 and S-3 (or other appropriate form) for the registration of
the
Warrants, the Representative’s Warrants and the Ordinary Shares issuable upon
exercise of the Warrants and the Representative’s Warrants under the
Act.
3.12. Payment
of Expenses.
3.12.1. 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 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 Sale Preliminary 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 the “Preliminary Blue Sky Memorandum,” and all
amendments and supplements thereto, fees in an amount equal to $35,000 and
disbursements for the Representatives’ counsel retained for such purpose, and a
fee of $5,000 payable to the Representative’s counsel for the preparation of the
Secondary Market Trading Survey, if applicable; (iv) filing fees, costs and
expenses incurred in registering the Offering with FINRA (including all
COBRADesk fees); (v) fees and disbursements of the transfer and warrant agent;
(vi) costs of placing “tombstone” advertisements in the The
Wall Street Journal,
The New
York Times
and a
third publication to be selected by the Representative, in an amount not to
exceed $25,000; (vii) the Company’s own expenses associated with “due diligence”
meetings; (viii) the preparation, binding and delivery of leather bound volumes
in quantity, form and style reasonably satisfactory to the Representative and
transaction lucite cubes or similar commemorative items in a style and quantity
as reasonably requested by the Representative; (ix) all Company costs and
expenses 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; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 3.12.1. The Representative may 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 above to be paid by the
Company to the Representative and others. The Company also agrees that it will
engage and pay for, at the Company’s expense, an investigative search firm to
conduct an investigation of the principals of the Company (such investigation
to
cost no more than $25,000 in the aggregate). If the Offering is not consummated
for any reason whatsoever, then the Company shall reimburse the Representative
in full for its out of pocket accountable expenses actually incurred by the
Representative, including, without limitation, its legal fees (which legal
fees
shall not exceed $100,000 less any amounts previously paid).
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3.12.2. Fee
on
Business Combination.
Upon
consummation of a Business Combination, the Company further agrees that in
addition to the expenses payable pursuant to Section 3.12.1, it will pay to
the
Representative the Contingent Discount, subject to Section 1.5 hereof.
3.13. Application
of Net Proceeds.
The Company will apply the net proceeds from the Private Placement and this
Offering received by it in a manner substantially consistent with the
application described under the caption “Use of Proceeds” in the
Prospectus.
3.14. 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.
3.15. Notice
to FINRA.
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3.15.1. Business
Combination.
For the
period of ninety (90) 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 merger candidate or to provide any other
merger and acquisition services, the Company will provide the following
information (the “Merger
Information”)
to
FINRA and Representative prior to the consummation of the Business
Combination: (i) complete details of all services and copies of
agreements governing such services; and (ii) justification as to why the
person or entity providing the merger and acquisition services should not be
considered an “underwriter and related person” with respect to the Company’s
initial public offering, as such term is defined in Rule 2710 of 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 Merger Information to
the Representative, the Company hereby expressly authorizes the Representative
to provide such information directly to FINRA as a result of representations
the
Representative has made to FINRA in connection with the Offering.
3.15.2. 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.
3.16. Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of Broadband) 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.
3.17. Internal
Controls.
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.
3.18. Accountants.
For a period of five years from the Effective Date or until such earlier time
upon which the Company is required to be liquidated, the Company shall retain
Xxxxxxxxx or other independent public accountants reasonably acceptable to
Broadband.
3.19. Form
6-K’s.
The Company shall, on the date hereof, retain its independent public accountants
to audit the financial statements of the Company as of the Closing Date (the
“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the Offering and
Private Placement as well as the proceeds from the exercise of the
Over-allotment Option if such exercise has occurred on the date of the
Prospectus. Within three (3) days of the Effective Date, the Company shall
file a Report of Foreign Private Issuer on Form 6-K with the Commission, which
Report shall contain the Company’s Audited Financial Statements. The Company
shall make a similar filing (without financial statements) upon the
Underwriters’ exercise of the Over-allotment Option, if any.
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3.20. 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.
3.21. 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.
3.22. 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 certain conditions under 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.
3.23. Business
Combination Announcement.
Within
five (5) 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 Representative announcing the consummation
of
the Business Combination and indicating the Representative were the managing
underwriters in the Offering. The Company shall supply the Representative with
a
draft of the Business
Combination Announcement and provide the Representatives with reasonable advance
opportunity to comment thereon. The Company will not place the Business
Combination Announcement without the final approval of the Representative,
which
approval will not be unreasonably withheld.
3.24. Colorado
Trust Filing.
In the
event the Securities are registered in the State of Colorado, the Company will
cause a Colorado Form ES to be filed with the Commissioner of the State of
Colorado no less than 10 days prior to the distribution of the Trust Fund in
connection with a Business Combination and will do all things necessary to
comply with Section 00-00-000 and Rule 51-3.4 of the Colorado
Securities Act.
3.25. Press
Releases.
The
Company agrees that it will not issue press releases or engage in any other
publicity, without Broadband’s prior written consent (not to be unreasonably
withheld), for a period of ninety (90) days after the Closing Date.
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3.26. Insurance. The
Company will maintain insurance of the types and in the amounts which are
customary for companies engaged in similar businesses, including, but not
limited to: (i) 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), (ii) insurance covering real and personal
property owned or leased by the Company against theft, damage, destruction,
acts
of vandalism and all other risks customarily insured against, and (iii) business
interruption insurance. Effective as of the consummation of the Business
Combination, the Company will continue to maintain insurance (of which the
Company is the beneficiary) with at least [$ ]
of
coverage of the life of each of its officers and directors for a period of
three
(3) years from the consummation of a Business Combination with an insurer rated
at least AA or better in the most recent addition of “Best’s Life Reports”. The
Company has not been refused any insurance coverage sought or applied for,
and
the Company has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect. The Company
shall be the sole beneficiary of each such policy.
3.27. Electronic
Prospectus. The
Company shall cause to be prepared and delivered to the Representative, at
its
expense, within one (1) Business Day 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 Representative, 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
Representative, 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). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to XXXXX or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt
of a request by an investor or his or her representative within the period
when
a prospectus relating to the Units is required to be delivered under the
Securities Act, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
3.28. 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
Placement Warrants and the Representative’s Securities outstanding from time to
time.
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3.29. Intentionally
Omitted.
3.30. Private
Placement Proceeds.
Immediately prior to the Effective Date, the Private Placement shall be
consummated and prior to the Closing Date, the Company shall deposit the full
purchase price of $3,000,000 into the Trust Account and shall provide Broadband
with evidence of the same.
3.31. No
Amendment to Charter. The
Company covenants and agrees that it will not seek to amend or modify paragraph
[___] of its Amended and Restated Memorandum and Articles of Association during
the Business Acquisition Period (as such term is defined in the Amended and
Restated Memorandum and Articles of Association).
3.31.1. The
Company acknowledges that the purchasers of the Firm Units and the Option Units
in the Offering shall be deemed to be third party beneficiaries of this Section
3.31.
3.31.2. The
Representative and the Company specifically agree that, except pursuant to
its
own terms, this Section 3.31 shall not be modified or amended in any
way.
3.32. 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 Fund.
3.33. NASDAQ
Global Market Quotation.
The
Company will use its best efforts to maintain the quotation of the Public
Securities on the NASDAQ Global Market or a national securities exchange
acceptable to the Representative for a period of at least five (5) years from
the date of this Agreement, unless the Company fails to consummate a Business
Combination and is required to liquidate its assets pursuant to its memorandum
and articles of association.
4. Conditions
of Underwriters’ Obligations.
The obligations of the several Underwriters 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
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:
4.1. Regulatory
Matters.
4.1.1. 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 Representative, and, at each of the
Closing Date and the Option 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 EG&S, as counsel to the Underwriters.
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4.1.2. FINRA
Clearance.
By the Effective Date, the Representative shall have received clearance from
FINRA as to the amount of compensation allowable or payable to the Underwriters
as described in the Registration Statement.
4.1.3. No
Commission Stop Order.
At each
of the Closing Date and the Option 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 threatened to institute any proceedings with respect to such
an
order.
4.1.4. No
Blue Sky Stop Orders.
No order suspending the sale of the Units in any jurisdiction designated by
the
Representative pursuant to Section 3.3 hereof shall have been issued on
either the Closing Date or the Option Closing Date, and no proceedings for
that
purpose shall have been instituted or shall be contemplated.
4.1.5. NASDAQ
Global Market Quotation.
The
Public Securities shall have been approved for quotation on NASDAQ Global
Market.
4.2. Company
Counsel Matters.
4.2.1. Closing
Date Opinion of Counsel.
On the Closing Date, the Representative shall have received the favorable
opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. (“Mintz”),
Xxxxxx and Xxxxxx (“Xxxxxx”),
Cayman Islands counsel for the Company and Xxx and Xxxxx, dated the Closing
Date, addressed to the Representative and in forms attached as Exhibits A,
B and
C hereto.
The
opinion of counsel(s) shall further include a statement to the effect that
such
counsel(s) participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants for the
Company and representatives of the Underwriters at which the contents of the
Registration Statement,
the Sale
Preliminary Prospectus, the Prospectus, 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, the Sale Preliminary Prospectus or the Prospectus
(except as otherwise set forth in this opinion), no facts have come to the
attention of such counsel which lead it to believe that the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus or any amendment
or
supplement thereto, as of the date of such opinion or in the case of the Sale
Preliminary Prospectus, as of the date thereof, contained any 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, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included
in
the Registration Statement, the Sale Preliminary Prospectus or the
Prospectus).
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4.2.2. Option
Closing Date Opinion of Counsel.
On each Option Closing Date, if any, the Representative shall have received
the
favorable opinion of Xxxxx, Xxxxxx and Xxx and Xxxxx, dated the Option Closing
Date, addressed to the Representative and in form and substance reasonably
satisfactory to the counsel to the Representative, confirming as of the Option
Closing Date, the statements made by Xxxxx, Xxxxxx and Xxx and Xxxxx in its
opinion delivered on the Closing Date.
4.2.3 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
Representative) of other counsel reasonably acceptable to the Representative,
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.
4.3. Cold
Comfort Letter.
At the time this Agreement is executed, and at each of the Closing Date and
the
Option Closing Date, if any, the Representative shall have received a letter,
addressed to the Representative 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 Representative and to EG&S from
Xxxxxxxxx dated, respectively, as of the date of this Agreement and as of the
Closing Date and the Option Closing Date, if any:
(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 Sale Preliminary 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 Sale Preliminary 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 Sale Preliminary Prospectus and the
Prospectus; or (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
May 23, 2008 balance sheet included in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, other than as set forth in or
contemplated by the Registration Statement, the Sale Preliminary Prospectus
and
the Prospectus, or, if there was any decrease, setting forth the amount of
such
decrease, and (c) during the period from May 6, 2008 to a specified date not
later than two (2) 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 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 Sale Preliminary
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 period since the Company’s inception 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
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(vii) Statements
as to such other matters incident to the transaction contemplated hereby
as the
Representative may reasonably request.
4.4. Officers’
Certificates.
4.4.1. Officers’
Certificate.
At each of the Closing Date and each Option Closing Date, if any, the
Representative shall have received a certificate of the Company signed by the
Chairman of the Board or the President and the Secretary or Assistant Secretary
of the Company, dated the Closing Date or the Option Closing Date, as the case
may be, 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, or the Option
Closing Date, as the case may be, and that the conditions set forth in
Section 4.5 hereof have been satisfied as of such date and that, as of
Closing Date and the Option Closing Date, as the case may be, the
representations and warranties of the Company set forth in Section 2 hereof
are true and correct. In addition, the Representative will have received
such other and further certificates of officers of the Company as the
Representative may reasonably request.
4.4.2. Secretary’s
Certificate.
At each of the Closing Date and each Option Closing Date, if any, the
Representative shall have received a certificate of the Company signed by the
Secretary or Assistant Secretary of the Company, dated the Closing Date or
the
Option Date, as the case may be, 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 public offering contemplated by this Agreement
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.
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,
the
Sale Preliminary 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 Sale Preliminary 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 Sale Preliminary 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 Sale Preliminary 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 Sale Preliminary Prospectus
and
Prospectus, in light of the circumstances under which they were made), not
misleading.
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4.6. Delivery
of Agreements.
4.6.1. Effective
Date Deliveries.
On the Effective Date, the Company shall have delivered to the Representative
executed copies of the Escrow Agreement, the Section 10b5-1 Agreement, the
Trust
Agreement, the Warrant Agreement, the Registration Rights Agreement, the
Services Agreement and all of the Insider Letters.
4.6.2. Closing
Date Deliveries.
On the Closing Date, the Company shall have delivered to the Representative,
the
Representative’s Purchase Option.
5. Indemnification.
5.1. Indemnification
of Underwriters.
5.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify
and
hold harmless each of the Underwriters and each dealer selected by the
Representative 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 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 any of the Underwriters and the Company or
between any of the Underwriters 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 5 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, the American Stock Exchange, the NASDAQ Global Market
or
Nasdaq 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. The
Company agrees promptly to notify the Representative 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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5.1.2. 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 5.1.1, 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.
5.2. Indemnification
of the Company.
Each Underwriter, severally and not jointly, 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 several Underwriters, 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, and further provided,
however,
in no
event shall the Underwriters aggregate amount of indemnification exceed the
amount of fees actually received under this Agreement . 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 several Underwriters
by the provisions of Section 5.1.2.
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5.3. Contribution.
5.3.1. 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 5 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 5 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 5, then, and in each such
case, the Company and the Underwriters 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 Underwriters, as incurred,
in such proportions that the Underwriters are 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. Notwithstanding
the provisions of this Section 5.3.1, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Public Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay in respect of such losses, liabilities,
claims, damages and expenses. 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 Underwriters or the Company, as applicable.
5.3.2. Contribution
Procedure.
Within fifteen days after receipt by any party to this Agreement (or its
representative) 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 representative 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. The Underwriters’
obligations to contribute pursuant to this Section 5.3 are several and not
joint.
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6. Default
by an Underwriter.
6.1. Default
Not Exceeding 10% of Firm Units or Option Units.
If any Underwriter or Underwriters shall default in its or their obligations
to
purchase the Firm Units or the Option Units, if the over-allotment option is
exercised, hereunder, and if the number of the Firm Units or Option Units with
respect to which such default relates does not exceed in the aggregate 10%
of
the number of Firm Units or Option Units that all Underwriters have agreed
to
purchase hereunder, then such Firm Units or Option Units 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 Units or Option Units.
In the event that the default addressed in Section 6.1 above relates to more
than 10% of the Firm Units or Option Units, the Representative may, in its
discretion, arrange for the Representative or for another party or parties
to
purchase such Firm Units or Option Units 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 Units or Option Units the Representative
does not arrange for the purchase of such Firm Units or Option Units, 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 the Representative
to
purchase said Firm Units or Option Units on such terms. In the event that
neither the Representative nor the Company arrange for the purchase of the
Firm
Units or Option Units to which a default relates as provided in this
Section 6, this Agreement may be terminated by the Representative or the
Company without liability on the part of the Company (except as provided in
Sections 3.12 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 Units, this Agreement will not
terminate as to the Firm Units; and provided
further
that
nothing herein shall relieve a defaulting Underwriter of its liability, if
any,
to the other several Underwriters and to the Company for damages occasioned
by
its default hereunder.
6.3. Postponement
of Closing Date.
In the event that the Firm Units or Option Units 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, the Representative 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 and/or the Prospectus, as the case may be, or in any
other documents and arrangements, and the Company agrees to file promptly any
amendment to, or to supplement, the Registration Statement and/or the
Prospectus, as the case may be, that in the opinion of counsel for the
Underwriters 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.
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7. Additional
Covenants.
7.1. Additional
Shares or Options.
The Company hereby agrees that until the Company consummates a Business
Combination, it shall not issue any Ordinary Shares or any options or other
securities convertible into Ordinary Shares or any shares of Preferred Stock
which participate in any manner in the Trust Account or which vote as a class
with the Ordinary Shares on a Business Combination.
7.2. Trust
Account Waiver Acknowledgments.
The
Company hereby agrees that it will not commence its due diligence investigation
of any operating business or businesses which the Company seeks to acquire
(each, a “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 $99,000,000 (without giving effect to any
exercise of the Over-allotment Option) for the benefit of the Public
Shareholders and that, except for a portion of 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 shares or the dissolution and liquidation of the Trust
Account as part of the Company’s plan of dissolution and liquidation or (ii) 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
E
and F,
respectively.
7.3. 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 Broadband and will not allow any amendments to, or waivers of,
such Insider Letters without the prior written consent of
Broadband.
7.4. 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 or By-Laws. As set forth in Section
3.31, prior to the consummation of a Business Combination, the Company will
not
amend its Amended and Restated Memorandum and Articles of Association or By-Laws
without the prior written consent of Broadband.
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7.5. Proxy
and Other Information.
The Company shall provide counsel to the Representative with ten copies of
all
proxy information and all related material filed with the Commission in
connection with a Business Combination concurrently with such filing with the
Commission. In addition, the Company shall furnish any other state in
which its initial public offering was registered, such information as may be
requested by such state.
7.6. Acquisition/Liquidation
Procedure.
7.6.1. The
Company agrees: (i) that, prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s shareholders for their approval
(“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
shareholder approval under applicable law; and (ii) that, in the event that
the
Company does not effect a Business Combination by the termination date of the
Company’s corporate existence (the “Termination
Date”),
the
Company shall take all action necessary to dissolve the Company and liquidate
the Trust Account to holders of IPO Shares (as defined below) as soon as
reasonably practicable, subject to the requirements of the laws of the Cayman
Islands. Upon liquidation of the Trust Account, the Company will distribute
to
all holders of IPO Shares (as defined below) an aggregate sum equal to $9.70
per
unit (plus any remaining portion of the interest income earned on the Trust
Account but net of: (i) taxes payable on interest income earned on the Trust
Account; (ii) amounts to be paid to any redeeming shareholders voting against
the extended period; and (iii) amounts released to the Company, from time to
time, to fund its working capital and general corporate requirements (not to
exceed $1,500,000) plus a pro rata share of any remaining net assets, subject
to
any valid claims by our creditors that are not covered by amounts held in the
Trust Account or the indemnities provided by the Company’s directors and
officers. Only holders of IPO Shares (as defined below) shall be entitled to
receive liquidating distributions and the Company shall pay no liquidating
distributions with respect to any other shares of capital stock of the Company,
including the Warrants and Placement Warrants. With respect to any vote for
any
plan of dissolution and liquidation recommended by the Company’s Board of
Directors, if any, the Company shall use its reasonable best efforts to cause
all of the Company Affiliates to vote the Ordinary Shares owned by them in
favor
of such plan of dissolution and liquidation.
7.6.2. With
respect to the Business Combination Vote or any vote to extend the period of
time to consummate a Business Combination by an additional 12 months (the
“Extended
Period”),
the
Company shall use its reasonable best efforts to cause all of the Initial
Shareholders to vote the Ordinary Shares owned by them immediately prior to
this
Offering in accordance with the majority of the IPO Shares. In addition, the
Company shall use its reasonable best efforts to cause the Initial Shareholders
to vote Ordinary Shares they acquire in the IPO or in the aftermarket in favor
of the Business Combination and in favor of the Extended Period. At the
time the Company seeks approval of any potential Business Combination or
Extended Period, the Company will offer each of the holders of the Company’s
Ordinary Shares issued in this Offering (the “IPO
Shares”)
the
right to convert their IPO Shares at a per share price equal to $9.90 (the
“Redemption
Price”).
If
holders of up to one share less than 30.0% in interest of the Company’s IPO
Shares, on a cumulative basis together with those shareholders voting against
the Extended Period, vote against such approval of a Business Combination,
the
Company may, but will not be required to, proceed with such Business
Combination. If the Company elects to so proceed, it will redeem shares,
based upon the Redemption Price, from those holders of IPO Shares who
affirmatively requested such conversion and who voted against the Business
Combination.
38
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Capital Management LLC
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45
7.7. 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.
7.8. 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
Company 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.
7.9. Target
Net Assets.
The
Company agrees that the initial Target Business that it acquires must have
a
fair market value of at least equal to 80% of the balance in the trust account
(less the deferred underwriting discounts and commissions of $4,000,000, or
approximately $4,600,000 to the extent the underwriters’ over-allotment option
is exercised in full, and taxes payable, plus any amounts paid to redeeming
shareholders in connection with the approval of any proposed extension) at
the
time of execution of a definitive agreement for such business combination.
The
fair market value of the target business or businesses will be determined by
our
board of directors based upon one or more standards generally accepted by the
financial community (which may include actual and potential sales, earnings,
cash flow and/or book value). If the Board of Directors of the Company is not
able to independently determine that the Target Business has a fair market
value
of at least 80.0% of the amount in the Trust Account (exclusive of the
Contingent Discount held in the trust account) at the time of execution of
a
definitive agreement for such acquisition, the Company will obtain an opinion
from an unaffiliated, independent investment banking firm which is a member
of
FINRA with respect to the satisfaction of such criteria. The Company is
not required to obtain an opinion from an investment banking firm as to the
fair
market value if the Company’s Board of Directors independently determines that
the Target Business does have sufficient fair market value.
7.10. Redemption
of Insider Shares.
If the
Underwriters do not exercise all or a portion of the over-allotment option,
the
Company will redeem up to an aggregate of 375,000 ordinary shares held by
Sang-Xxxx Xxx, the Company’s Chairman and Chief Executive Officer, such that the
Company’s officers and directors, in the aggregate, hold no more than a 20%
ownership interest in the Company (assuming no purchases by the Company’s
officers or directors in the Company’s IPO).
39
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Capital Management LLC
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__, 2008
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45
8. 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 the Option Closing Date, if
any, and such representations, warranties and agreements of the Underwriters
and
Company, including the indemnity agreements contained in Section 5 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, the Company or any
controlling person, and shall survive termination of this Agreement or the
issuance and delivery of the Securities to the several Underwriters until the
earlier of the expiration of any applicable statute of limitations and the
seventh (7th) anniversary of the later of the Closing Date or the Option Closing
Date, if any, at which time the representations, warranties and agreements
shall
terminate and be of no further force and effect.
9. Effective
Date of This Agreement and Termination Thereof.
9.1. Effective
Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
9.2. Termination.
Broadband 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 Representative’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,
the NASDAQ Global Market or the NASDAQ Capital Market (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 or the Republic
of
Korea shall have become involved in a 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 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 Representative’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 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,
including, without limitation, as a result of terrorist activities after the
date hereof, as in the Representative’s judgment would make it impracticable to
proceed with the offering, sale and/or delivery of the Units or to enforce
contracts made by the Underwriters for the sale of the Units.
40
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Capital Management LLC
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45
9.3. 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 3.12.1 hereof.
9.4. 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.
10. Miscellaneous.
10.1. 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 or delivered by facsimile transmission (with printed
confirmation of receipt) and confirmed and shall be deemed given when so mailed,
delivered or faxed (or if mailed, two days after such mailing):
If
to the
Representative:
Broadband
Capital Management LLC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
X.
Xxxxxx, Managing Director
Fax:
(000) 000-0000
With
a
copy (which shall not constitute notice) to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxx
00xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
Fax:
(000) 000-0000
If
to the
Company:
SoftForum
Building
8th
Floor
000-0
Xxxxxxxxx
Xxxxxxx,
Xxxxx, Xxxxx 135-170
Fax:
[-----------]
With
a
copy (which shall not constitute notice) to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
Fax:
(000) 000-0000
41
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Capital Management LLC
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__, 2008
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45
10.2. 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.
10.3. Amendment.
This Agreement may only be amended by a written instrument executed by each
of
the parties hereto.
10.4. 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.
10.5. Binding
Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 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.
10.6. Governing
Law, Venue, etc.
10.6.1. 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 the conflict of laws
principles thereof. Each of the Representative and the Company (and any
individual signatory hereto): (i) agrees that any legal suit, action or
proceeding arising out of or relating to this agreement and/or the transactions
contemplated hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York, (ii) waives any objection which such party may have or
hereafter to the venue of any such suit, action or proceeding and (iii)
irrevocably and exclusively consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding.
10.6.2. Each
of
the Representative and the Company (and any individual signatory hereto) further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the Company or
any
such individual mailed by certified mail to the Company’s address shall be
deemed in every respect effective service of process upon the Company or any
such individual in any such suit, action or proceeding, and service of process
upon the Representative mailed by certified mail to the Representative’s address
shall be deemed in every respect effective service process upon the
Representative, in any such suit, action or proceeding.
42
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Capital Management LLC
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45
10.6.3. 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.
10.6.4. 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.
10.7. 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.
10.8. 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.
43
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Capital Management LLC
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10.9. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the offering of the Company's securities. The
Company further acknowledges that the Underwriters are 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 Underwriters
act or be responsible as a fiduciary to the Company, its management,
shareholders, creditors or any other person in connection with any activity
that
the Underwriters may undertake or have undertaken in furtherance of the offering
of the Company's securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim 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
Underwriters 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 Underwriters 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 Underwriters 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.
44
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Capital Management LLC
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__, 2008
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45
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,
By:
________________________________________
Name:
Sang-Xxxx Xxx
Title:
Chairman & Chief Executive Officer
Agreed
to and accepted
as
of the date first written above:
BROADBAND
CAPITAL MANAGEMENT LLC, as Representative
of
the
several Underwriters
By:
________________________________________
Name:
T.
Xxxxx Xxxxxx
Title:
Managing Director
[Signature
Page to Underwriting Agreement, dated ____ __, 2008]
{00078524.DOC.4}
45
SCHEDULE
A
5,000,000
Units
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
|
Broadband
Capital Management LLC
|
||
|
5,000,000
|
EXHIBIT
A
FORM
OF MINTZ,
LEVIN, COHN, FERRIS, GLOVSKY AND POPEO
P.C. OPINION
EXHIBIT
B
FORM
OF XXXXXX & XXXXXX OPINION
EXHIBIT
C
FORM
OF XXX & XXXXX OPINION
EXHIBIT
D
Form
of Target Business Letter
SoftForum
Xxxxxxxx
0xx
Xxxxx
000-0
Xxxxxxxxx
Xxxxxxx,
Xxxxx, Xxxxx 135-170
Gentlemen:
Reference
is made to the Final Prospectus of Korea
Milestone Acquisition Corp.
(the
“Company”),
dated
________ __, 2008 (the “Prospectus”).
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in Prospectus.
We
have
read the Prospectus and understand that the
Company has
established the Trust Account, initially in an amount of at least $99,000,000
for the benefit of the Public Shareholders and the underwriters of the Company’s
initial public offering (the “Underwriters”)
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 redemption of their shares or the dissolution and liquidation
of the Company; or (ii) to the
Company and the Underwriters
after it
consummates a Business Combination.
For
and
in consideration of the
Company agreeing
to evaluate the undersigned for purposes of consummating a Business Combination
with it, the undersigned hereby agrees that it does not have any right, title,
interest or claim of any kind in or to any monies in the Trust Account (each,
a
“Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the
Company and
will
not seek recourse against the Trust Account for any reason
whatsoever.
|
Print
Name of Target Business
|
|
|
Authorized
Signature of Target Business
|
EXHIBIT
E
Form
of Vendor Letter
SoftForum
Xxxxxxxx
0xx
Xxxxx
000-0
Xxxxxxxxx
Xxxxxxx,
Xxxxx, Xxxxx 135-170
Gentlemen:
Reference
is made to the Final Prospectus of Korea
Milestone Acquisition Corp.
(the
“Company”),
dated
________ __, 2008 (the “Prospectus”).
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in Prospectus.
We
have
read the Prospectus and understand that the
Company
has
established the Trust Account, initially in an amount of at least $99,000,000
for the benefit of the Public Shareholders and the underwriters of the Company’s
initial public offering (the “Underwriters”)
and
that, except for the interest earned on the amounts held in the Trust Account
(which interest may, prior to the consummation of a business combination or
the
Company’s liquidation, be released (i) to the Company to pay taxes it has
incurred, (ii) to redeeming shareholders voting against the extended period,
as
described in the Prospectus and (iii) to the Company, from time to time, to
fund
its working capital and general corporate requirements), the
Company
may
disburse monies from the Trust Account only: (i) to the Public Shareholders
in
the event of the redemption of their shares or the dissolution and liquidation
of the Company; or (ii) to the
Company and the Underwriters
after it
consummates a Business Combination.
For
and
in consideration of the
Company
agreeing
to use the services of the undersigned, the undersigned hereby agrees that
it
does not have any right, title, interest or claim of any kind in or to any
monies in the Trust Account (each, a “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any services provided to the
Company
and will
not seek recourse against the Trust Account for any reason
whatsoever.
|
Print
Name of Vendor
|
|
|
Authorized
Signature of Vendor
|
