EARLYBIRDCAPITAL, INC.
EARLYBIRDCAPITAL,
INC.
000
XXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000
Dear
Sirs:
1. Registration
under the Securities Act of 1933, as amended (“Act”), of the 2,500,000
Units* of China VantagePoint Acquisition
Company (“Company”), as more fully described in the Preliminary Prospectus,
dated _________, 2011, and in the final prospectus (“Prospectus”) which will be
forwarded to you, will become effective in the near future. We, as
the Underwriters, are offering certain of the Units for purchase by a selected
group of dealers (“Selected Dealers”) on the terms and conditions stated
herein.
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Authorized
Public Offering Price:
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$6.00
per Unit.
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Dealers’
Selling Concession:
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Not
to exceed $0.__ per Unit payable upon termination of this Agreement,
except as provided below. We reserve the right not to pay such
concession on any of the Units purchased by any of the Selected Dealers
from us and repurchased by us at or below the price stated above prior to
such termination.
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Reallowance:
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You
may reallow not in excess of $0.__ per Unit as a selling concession to
dealers who are members in good standing of the Financial Industry
Regulatory Authority (“FINRA”) or to foreign dealers who are not eligible
for membership in FINRA and who have agreed (i) not to sell the Units
within the United States of America, its territories or possessions or to
persons who are citizens thereof or residents therein, and (ii) to abide
by the applicable NASD Conduct Rules of
FINRA.
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Delivery
and Payment:
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Delivery
of the Units shall be made on or about ______, 2011 or such later date as
we may advise on not less than one day’s notice to you, at the office of
EarlyBirdCapital, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such other place as we shall specify on not less than one day’s notice
to you. Payment for the Units is to be made, against delivery, at the
authorized public offering price stated above, or, if we shall so advise
you, at the authorized public offering price less the dealers’ selling
concession stated above, by wire transfer in Federal (same day) funds or
by certified or official bank check in New York Clearing House Funds
payable to the order of EarlyBirdCapital, Inc.
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Termination:
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This
Agreement shall terminate at the close of business on the 45th
day following the effective date of the Registration Statement (of which
the enclosed Prospectus forms a part), unless extended at our discretion
for a period or periods not to exceed in the aggregate 30 additional days.
We may terminate this Agreement, whether or not extended, at any time
without notice.
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2. Any
of the Units purchased by you hereunder are to be offered by you to the public
at the public offering price, except as herein otherwise provided and except
that a reallowance from such public offering price not in excess of the amount
set forth on the first page of this Agreement may be allowed as consideration
for services rendered in distribution to dealers that (a) are actually
engaged in the investment banking or securities business; (b) execute the
written agreement prescribed by Rule 2740 of FINRA’s NASD Conduct Rules; and (c)
are either members in good standing of FINRA or foreign banks, dealers or
institutions not eligible for membership in FINRA that represent to you that
they will promptly reoffer such Units at the public offering price and will
abide by the conditions with respect to foreign banks, dealers and institutions
set forth in paragraph 9 below.
3. You,
by becoming a member of the Selected Dealers, agree (a) upon effectiveness of
the Registration Statement and your receipt of the Prospectus, to take up and
pay for the number of Units allotted and confirmed to you, (b) not to use any of
the Units to reduce or cover any short position you may have and (c) to make
available a copy of the Prospectus to all persons who on your behalf will
solicit orders for the Units prior to the making of such solicitations by such
persons. You are not authorized to give any information or to make any
representations other than those contained in the Prospectus or any supplements
or amendments thereto.
4. We may be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Units, and to stabilize or maintain the
market price of the Units. You agree to advise us at any time and
from time to time upon our request, prior to the termination of this Agreement,
of the number of Units purchased by you remaining unsold by you, and you will,
upon our request at any such time, sell to us, for our account or the account of
one or more of the Underwriters, such amount of such unsold Units as we may
designate, at the public offering price thereof less an amount to be determined
by us not in excess of the concession to dealers. In the event that
prior to the later of (i) the termination of this Agreement or (ii) the covering
by us of any short position created by us in connection with the offering of the
Units, for our account or the account of one or more Underwriters, we purchase
or contract to purchase for our account or the account of any of the
Underwriters, in the open market or otherwise, any Units theretofore delivered
to you, we reserve the right to withhold the above-mentioned concession to
dealers on such Units if sold to you at the public offering price, or if such
concession has been allowed to you through your purchase at a net price, you
agree to repay such concession upon our demand, plus, in each case, any taxes on
redelivery, commissions, original issue discount, accrued interest and dividends
paid in connection with such purchase or contract to
purchase.
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5. As
contemplated by Rule 15c2-8 under the Securities Exchange Act of 1934, as
amended, we agree to mail a copy of the Prospectus to any person making a
written request therefor during the period referred to in the rules and
regulations adopted under such Act, the mailing to be made to the address given
in the request. You confirm that you have delivered all preliminary prospectuses
and revised preliminary prospectuses, if any, required to be delivered under the
provisions of Rule 15c2-8 and agree to deliver all copies of the Prospectus
required to be delivered thereunder. We have heretofore delivered to
you such preliminary prospectuses as have been required by you, receipt of which
is hereby acknowledged, and will deliver such further prospectuses as may be
requested by you. You agree to keep an
accurate record of your distribution (including dates, number of copies and
persons to whom sent) of copies of the Prospectus or any preliminary prospectus
(or any amendment or supplement to any thereof), and promptly upon request by us
to bring all subsequent changes to the attention of anyone to whom such material
shall have been furnished. You agree to furnish to persons who
receive a confirmation of sale a copy of the Prospectus filed pursuant to Rule
424(b) or Rule 424(c) under the Securities Act.
6. You
agree that until termination of this Agreement you will not make purchases or
sales of the Units except (a) pursuant to this Agreement, (b) pursuant to
authorization received from us, or (c) in the ordinary course of business as
broker or agent for a customer pursuant to any unsolicited order.
7. Additional
copies of the Prospectus and any supplements or amendments thereto shall be
supplied in reasonable quantity upon request.
8. The
Units are offered by us for delivery when, as and if sold to, and accepted by,
us and subject to the terms herein and in the Prospectus or any supplements or
amendments thereto, to our right to vary the concessions and terms of offering
after their release for public sale, to approval of counsel as to legal matters
and to withdrawal, cancellation or modification of the offer without
notice.
9. Upon
written application to us, you shall be informed as to the jurisdictions under
the securities or blue sky laws of which we believe the Units are eligible for
sale, but we assume no responsibility as to such eligibility or the right of any
member of the Selected Dealers to sell any of the Units in any jurisdiction. We
acknowledge that you have advised us that sales of the Company’s securities
cannot be made from the state of New Jersey or Connecticut. You
represent to us that all sales by you of the Company’s securities will be made
by your offices outside the state of New Jersey and Connecticut. We
have caused to be filed a Further State Notice relating to such of the Units to
be offered to the public in New York in the form required by, and pursuant to,
the provisions of Article 23A of the General Business Law of the State of New
York. Upon the completion of the public offering contemplated herein, each
member of the Selected Dealers agrees to promptly furnish to us, upon our
request, territorial distribution reports setting forth each jurisdiction in
which sales of the Units were made by such member, the number of Units sold in
such jurisdiction, and any further information as we may request, in order to
permit us to file on a timely basis any report that we as the Underwriters of
the offering or manager of the Selected Dealers may be required to file pursuant
to the securities or blue sky laws of any
jurisdiction.
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10. You,
by becoming a member of the Selected Dealers, represent that you are actually
engaged in the investment banking or securities business and that you are (a) a
member in good standing of FINRA and will comply with all applicable rules of
FINRA, including but not limited to FINRA’s NASD Conduct Rule 2740, or (b) a
foreign dealer or institution that is not eligible for membership in FINRA and
that has agreed (i) not to sell Units within the United States of America, its
territories or possessions or to persons who are citizens thereof or residents
therein; (ii) that any and all sales shall be in compliance with FINRA’s Rule
5130; (iii) to comply, as though it were a member of FINRA, with Rules 2730,
2740 and 2750 of FINRA’s NASD Conduct Rules, and to comply with Rule 2420
thereof as that Rule applies to a non-member broker or dealer in a foreign
country. You represent that neither you
nor any of your directors, officers, partners, or persons associated with you
(as defined in the By-Laws of FINRA) nor, to your knowledge, any "related
person" (as defined by FINRA in its Interpretation Relating to Review of
Corporate Financing, which term includes counsel, financial consultants and
advisors, finders, members of the selling or distribution groups, and any other
persons associated with or related to any of the foregoing) or any other
broker-dealer has had, within the last twelve months, any dealings with the
Company or any controlling shareholders thereof (other than relating to this
Agreement) as to which documents or information are required to be filed with
FINRA pursuant to its Interpretation Relating to Review of Corporate
Financing.
11. You are not authorized to act as agent for any
Underwriter or the Company in offering the Units to the public
otherwise. Neither we not any Underwriter shall be under any
obligation to you except as specifically set forth
herein. Nothing herein shall constitute any members of the
Selected Dealers partners with us or with each other, but you agree,
notwithstanding any prior settlement of accounts or termination of this
Agreement, to bear your proper proportion of any tax or other liability based
upon the claim that the Selected Dealers constitute a partnership, association,
unincorporated business or other separate entity and a like share of any
expenses of resisting any such claim.
12. EarlyBirdCapital, Inc. shall be
the Managing Underwriter of the offering and manager of the Selected Dealers and
shall have full authority to take such action as it may deem advisable in
respect of all matters pertaining to the offering or the Selected Dealers or any
members of them. Except as expressly stated herein, or as may arise under the
Act, we shall be under no liability to any member of the Selected Dealers as
such for, or in respect of (i) the validity or value of the Units (ii) the form
of, or the statements contained in, the Prospectus, the Registration Statement
of which the Prospectus forms a part, any supplements or amendments to the
Prospectus or such Registration Statement, any preliminary prospectus, any
instruments executed by, or obtained or any supplemental sales data or other
letters from, the Company, or others, (iii) the form or validity of the
Underwriting Agreement or this Agreement, (iv) the eligibility of any of the
Units for sale under the laws of any jurisdiction, (v) the delivery of the
Units, (vi) the performance by the Company, or others of any agreement on its or
their part, or (vii) any matter in connection with any of the foregoing, except
our own want of good faith.
13. If
for federal income tax purposes the Selected Dealers, among themselves or with
the Underwriters, should be deemed to constitute a partnership, then we elect to
be excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986, as amended, and we agree not to take any position
inconsistent with such selection. We authorize you, in your discretion, to
execute and file on our behalf such evidence of such election as may be required
by the Internal Revenue Service.
14. All
communications from you shall be addressed to EarlyBirdCapital, Inc. at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx. Any notice from us to you shall be deemed to have been fully
authorized by the Underwriters and to have been duly given if mailed,
telegraphed or sent by confirmed facsimile transmittal to you at the address to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to conflict of
laws. Time is of the essence in this Agreement.
If you desire to become a member of the
Selected Dealers, please advise us to that effect immediately by facsimile
transmission and sign and return to us the enclosed counterpart of this
letter.
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Very
truly yours,
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EARLYBIRDCAPITAL,
INC.
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By:
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General
Counsel
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We accept membership in the Selected
Dealers on the terms specified above.
Dated: ___________
__, 2011
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(Selected
Dealer)
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By:
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Name:
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Title:
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