China Ascendance Acquisition Corporation 10,000,000 Units1 Ordinary Shares Warrants UNDERWRITING AGREEMENT
China
Ascendance Acquisition Corporation
10,000,000
Units1
Ordinary
Shares
Warrants
,
2008
Susquehanna
Financial Group, LLLP
Ladenburg
Xxxxxxxx & Co. Inc.
As
Representatives of the several Underwriters,
c/o
Susquehanna Financial Group, LLP
000
Xxxx
Xxx, Xxxxx 000
Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies
and Gentlemen:
China
Ascendance Acquisition Corporation, a Cayman Islands limited life company (the
“Company”), proposes to sell to the several underwriters named in Schedule I
hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as
representatives, an aggregate of 10,000,000 units (the “Units”) of the Company
(said Units to be issued and sold by the Company being hereinafter called the
“Underwritten Securities”). The Company also proposes to grant to the
Representatives an option to purchase up to 1,500,000 additional units to cover
over-allotments, if any (the “Option Securities”; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
“Securities”). To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the term Underwriter shall mean either the singular
or
plural as the context requires. Certain capitalized terms used herein and not
otherwise defined are defined in Section 20 hereof.
Each
Unit
consists of one ordinary share of the Company, par value $.001 per share (the
“Ordinary Shares”), and one warrant to purchase one Ordinary Share (the
“Warrant(s)”). The Ordinary Shares and Warrants included in the Units will not
trade separately until the ninetieth (90th)
day
after the date of the Prospectus unless the Representatives determine that
an
earlier date is acceptable, subject to (a) the Company’s preparation of an
audited balance sheet reflecting the receipt by the Company of the proceeds
of
the offering of the Securities and (b) the filing of such audited balance sheet
with the Commission on a Form 6-K or similar form by the Company which includes
such balance sheet. Each Warrant entitles its holder, upon exercise, to purchase
one Ordinary Share for $7.50 during the period commencing on the later of the
completion of an initial “Business Combination” or one (1) year from the date of
the Prospectus and terminating on the four-year anniversary of the date of
the
Prospectus or earlier upon redemption or Liquidation. As used herein, the term
“Business Combination” (as described more fully in the Registration Statement)
shall mean any acquisition, through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar business
combination with one or more operating businesses or assets.
1 Plus
an
option to purchase from the Company, up to 1,500,000 additional Units to
cover
over-allotments.
The
Company has entered into an Investment Management Trust Agreement, dated as
of
the date hereof, with Continental Stock Transfer & Trust Company
(“CST&T”), as trustee, in substantially the form filed as an exhibit to the
Registration Statement (the “Trust Agreement”), pursuant to which certain
proceeds of the offering will be deposited and held in a trust account (the
“Trust Account”) for the benefit of the Company, the Underwriters and the
holders of the Underwritten Securities and the Option Securities, if and when
issued.
The
Company has entered into a Warrant Agreement, dated as of the date hereof,
with
CST&T, as warrant agent, in substantially the form filed as an exhibit to
the Registration Statement (the “Warrant Agreement”) pursuant to which CST&T
will act as warrant agent in connection with the issuance, registration,
transfer, exchange, redemption, and exercise of the Warrants, the
Representatives’ Warrants (as defined below) and Sponsors’ Warrants (as defined
below).
The
Company has entered into letter agreements (collectively, the “Securities
Purchase Agreement”), with the shareholders of the Company immediately prior to
the sale of the securities (each a “Founder” and, collectively, the “Founders”)
pursuant to which the Founders have purchased from the Company or a
shareholder of the Company an aggregate of 2,500,000 Ordinary Shares (the
“Founders’
Ordinary Shares”) for an aggregate purchase price of $25,000. The Founders’
Ordinary Shares are identical to the Ordinary Shares included in the Units
except (i) each Founder has agreed to place its Founders’ Ordinary Shares in
escrow until (A) six months after the initial Business Combination with respect
to an aggregate of 500,000 shares and (B) one year after the business
Combination with respect to the remaining 2,000,000 shares, (ii) each Founder
has agreed not to sell or otherwise transfer the Founders’ Ordinary Shares until
they are released from escrow, other than to Permitted Transferees (as defined
below), (iii) the Founders have agreed to vote the Founders’ Ordinary Shares in
the same manner as the shares cast by a majority of the public stockholders
in
connection with the vote required to approve our initial Business Combination,
(iv) the Founders will not be able to exercise conversion rights with respect
to
the Founders’ Ordinary Shares and (v) the Founders have agreed to waive their
rights to participate in the Liquidation distribution with respect to the
Founders’ Ordinary Shares. For purposes of this Agreement, “Permitted
Transferees” has the meaning set forth in (A) the Securities Purchase Agreement
with respect to the Founders’ Ordinary Shares and (B) the Warrant Subscription
Agreement with respect to the Sponsors’ Warrants.
The
Company has entered into a Warrant Subscription Agreement, dated as of
___________, 2008 (the “Warrant Subscription Agreement”), with Bright Elite
Enterprises Limited, Xxxxxxx Xxxxxx and certain
other Founders (each a “Sponsor” and, collectively, the “Sponsors”),
pursuant to which the Sponsors have agreed to purchase an aggregate of 3,200,000
warrants, each entitling the holder to purchase one Ordinary Share (the
“Sponsors’ Warrants”), for $1.00 per Sponsors’ Warrant. The Sponsors’ Warrants
are identical to the Warrants included in the Units, except (i) the Sponsors’
Warrants will not be transferable or salable by the Sponsors (subject to limited
exceptions more fully described in the Warrant Subscription Agreement) until
after the Company completes the Business Combination, (ii) if the Company calls
the Warrants for redemption, the Sponsors’ Warrants will be exercisable on a
cashless basis so long as they are held by the Sponsors or their Permitted
Transferees and (iii) after the consummation of the Company’s initial Business
Combination, the holders of the Sponsors’ Warrants and the underlying Ordinary
Shares will be entitled to registration rights with respect to such securities
under an agreement to be signed on or before the date of the
Prospectus.
2
The
Company has entered into an Escrow Agreement, dated as of the date hereof (the
“Escrow Agreement”), with CST&T and the Founders, pursuant to which the
Founders have agreed to place the Founders’ Ordinary Shares into escrow until
(i) six months after the initial Business Combination with respect to 500,000
Ordinary Shares and (ii) one year after the initial Business Combination with
respect to the remaining 2,000,000 Ordinary Shares, subject to the terms,
conditions and exceptions more fully described in the Escrow
Agreement.
The
Company has entered into a Registration Rights Agreement, dated as of the date
hereof, with the Founders and Sponsors, in substantially the form filed as
an
exhibit to the Registration Statement (the “Registration Rights Agreement”),
pursuant to which the Company has granted certain registration rights in respect
of the Founders’
Ordinary
Shares,
the
Sponsors’ Warrants and the underlying Ordinary
Shares.
The
Company hereby agrees to issue and sell to the Representatives (and/or their
designees) on the date hereof an option (“Representatives’ Purchase Option”) for
the purchase of an aggregate of 700,000 units (“Representatives’ Units”) for an
aggregate purchase price of $100. Each of the Representatives’ Units is
identical to the Units, except that the exercise price of the Representatives’
Warrants shall be $9.375 per share (125% of the exercise price of the Warrants).
The Representatives’ Purchase Option shall be exercisable, in whole or in part,
commencing on the later of (i) the consummation of the initial Business
Combination and (ii) one year 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 $10.00 (100% of the initial public offering price of a
Unit). The Representatives’ Purchase Option, the Representatives’ Units, the
Warrants included in the Representatives’ Units (“Representatives’ Warrants”)
and the Ordinary Shares included in the Representatives’ Units and issuable upon
exercise of the Representatives’ Warrants are hereinafter referred to
collectively as the “Representatives’ Securities.”
The
Company has caused to be duly executed and delivered letters by the Founders
and
each of the Company’s officers and directors (collectively, the “Insiders”),
each in substantially the form filed as an exhibit to the Registration Statement
(the “Insider Letters”).
The
Company has entered into a letter agreement, dated as of the date hereof (the
“Services Agreement”), with China Ascendance Management Corporation, pursuant to
which the Company will pay China Ascendance Management Corporation, subject
to
the terms of the Services Agreement, an aggregate monthly fee of $7,500 for
general and administrative services, including office space, utilities and
secretarial support from the date hereof until the earlier of (i) the
consummation of a Business Combination or (ii) the Liquidation.
3
1. Representations
and Warranties.
The
Company represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1.
(a) The
Company has prepared and filed with the Commission a registration statement
(file number 333-_________) on Form F-1, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Securities and the Representatives’ Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time, has become
effective. The Company may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously been furnished
to
you. The Company will file with the Commission a final prospectus in accordance
with Rule 424(b). As filed, such final prospectus shall contain all information
required by the Act and, except to the extent the Representatives shall agree
in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed
at
the Execution Time, shall contain only such specific additional information
and
other changes (beyond that contained in the latest Preliminary Prospectus)
as
the Company has advised you, prior to the Execution Time, will be included
or
made therein. The Company has complied, to the Commission’s satisfaction, with
all requests of the Commission for additional or supplemental information.
The
conditions for use of a registration statement on Form F-1 set forth in the
General Instructions to Form F-1 have been satisfied with respect to the
Company.
(b) On
the
Effective Date, the Registration Statement did, and when the Prospectus is
first
filed in accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date is not
the Closing Date (a “settlement date”), the Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act; on the Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any 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 not misleading; and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any settlement date,
the Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus
(or
any supplement thereto), it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 8 hereof.
(c) The
Statutory Prospectus does not contain any untrue statement of a material fact
or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions
from the Statutory Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8
hereof.
4
(d) The
Company has filed with the Commission a Form 8-A (file number [_________])
providing for the registration under the Exchange Act of the Securities and
the
Representatives’ Securities, which registration is currently effective on the
date hereof. The Securities and the Representatives’ Securities have been duly
listed, and admitted and authorized for trading subject only to official notice
of issuance, on the American Stock Exchange, and the Company knows of no reason
or set of facts which is likely to adversely affect such approval.
(e) The
Commission has not issued any order or, to the Company’s knowledge, threatened
to issue any order preventing or suspending the effectiveness of the
Registration Statement or the use of any Preliminary Prospectus, the Prospectus
or any part thereof, and has not instituted or, to the Company’s knowledge,
threatened to institute any proceedings with respect to such an
order.
(f) (i)
At
the time of filing the Registration Statement and (ii) as of the Execution
Time,
the Company was and is an Ineligible Issuer (as defined in Rule
405).
(g) The
Company has not prepared or used a Free Writing Prospectus.
(h) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as described
in
the Statutory Prospectus and the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each
jurisdiction which requires such qualification.
(i) There
are
no subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X.
(j) There
is
no franchise, contract or other document of a character required to be described
in the Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required (and the Statutory
Prospectus contains in all material respects the same description of the
foregoing matters contained in the Prospectus); and the statements in the
Statutory Prospectus and the Prospectus under the headings “Principal
Stockholders,” “Certain Relationships and Related Transactions,” “Description of
Securities” and “Taxation” insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or proceedings. There
are
no business relationships or related party transactions involving the Company
or
any other person required by the Act to be described in the Registration
Statement or Prospectus that have not been described as required.
(k) The
Company’s authorized equity capitalization is as set forth in the Statutory
Prospectus and the Prospectus.
(l) All
issued and outstanding securities of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable; 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 offers
and sales of the outstanding Ordinary Shares and Warrants were at all relevant
times either registered under the Act, the applicable state securities and
Blue
Sky laws and all applicable foreign securities laws or, based in part on the
representations and warranties of the purchasers of such Ordinary Shares and
Warrants, exempt from such registration requirements. The holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities or the Representatives’ Securities; and,
except as set forth in the Statutory Prospectus and the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are outstanding.
No
other
person or entity has any rights or claims against the Company as a result of
having subscribed to purchase, having agreed to subscribe to purchase, having
purchased or having agreed to purchase any capital stock of the Company, or
any
securities convertible into, or exercisable or exchangeable for, capital stock
of the Company. No other person or entity has any rights or claims against
the
Company as a result of having subscribed to purchase, having agreed to subscribe
to purchase, having purchased or having agreed to purchase any capital stock
of
the Company or any securities convertible into, or exercisable or exchangeable
for, capital stock of the Company.
5
(m) The
Ordinary Shares included in the Units and the Representatives’ Purchase Option
have been duly authorized and, when executed by the Company and countersigned,
and issued and delivered against payment for the Units by the Underwriters
pursuant to this Agreement or payment for the Representatives’ Purchase Option
by the Representatives, as the case may be, will be validly issued, fully paid
and non-assessable.
(n) The
Warrants included in the Units and the Representatives’ Purchase Option, when
executed, authenticated, issued and delivered in the manner set forth in the
Warrant Agreement against payment therefor pursuant to this Agreement or the
Representatives’ Purchase Option, as the case may be, will be duly executed,
authenticated, issued and delivered, and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, or similar laws affecting creditors’ rights generally from time to
time in effect and by equitable principles of general
applicability.
(o) The
Ordinary Shares issuable upon exercise of the Warrants included in the Units
and
upon any exercise of Representatives’ Warrants have been duly authorized and,
when issued and delivered against payment therefor pursuant to the Warrant
Agreement and the Warrants, or Representatives’ Warrants, as the case may be,
will be validly issued, fully paid and non-assessable. The holders of such
Ordinary Shares are not and will not be subject to personal liability by reason
of being such holders; such Ordinary Shares are not and will not be subject
to
any preemptive or other similar contractual rights granted by the Company;
and
all corporate action required to be taken for the authorization, issuance and
sale of such Ordinary Shares (other than such execution, countersignature and
delivery at the time of issuance) has been duly and validly taken.
(p) The
certificates for the Ordinary Shares are in valid and sufficient
form.
(q) Except
as
set forth in the Statutory Prospectus and the Prospectus, no holders of any
securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the
Company to register any such securities of the Company under the Act or to
include any such securities in a registration statement to be filed by the
Company.
6
(r) No
securities of the Company have been sold by the Company or by or on behalf
of,
or for the benefit of, any person or persons controlling, controlled by, or
under common control with the Company from its inception through and including
the date hereof, except as disclosed in the Registration Statement.
(s) Neither
the Company nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Act with the offer and sale of the Securities pursuant to the
Registration Statement.
(t) The
Founders’ Ordinary Shares are duly authorized, validly issued, fully paid and
non-assessable.
(u) The
entire $3,200,000 of proceeds from the sale of the Sponsors’ Warrants has been
deposited with Xxxxxxxx Xxxxxx in accordance with the terms of the Warrant
Subscription Agreement and will be deposited in the Trust Account upon the
consummation of the offering of the Securities.
(v) The
Sponsors’ Warrants, when delivered upon the consummation of this offering, will
be duly executed, authenticated and issued, and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability.
(w) This
Agreement has been duly authorized, executed and delivered by the
Company.
(x) The
Trust
Agreement has been duly authorized, executed and delivered by the Company and
is
a valid and binding agreement of the Company, enforceable against the Company
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, or similar laws affecting creditors’ rights generally
from time to time in effect and by equitable principles of general
applicability.
(y) The
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(z) The
Securities Purchase Agreement has been duly authorized, executed and delivered
by the Company and the Founders, and is a valid and binding agreement of the
Company and the Founders, enforceable against the Company and the Founders,
respectively, in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
7
(aa) The
Warrant Subscription Agreement has been duly authorized, executed and delivered
by the Company and the Sponsors, and is a valid and binding agreement of the
Company and the Sponsors, enforceable against the Company and the Sponsors,
respectively, in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(bb) The
Escrow Agreement has been duly authorized, executed and delivered by the Company
and, to the Company’s knowledge, the Founders, and is a valid and binding
agreement of the Company and, to the Company’s knowledge, the Founders,
enforceable against the Company and, to the Company’s knowledge, the Founders,
respectively, in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(cc) The
Services Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, or similar laws affecting creditors’
rights generally from time to time in effect and by equitable principles of
general applicability.
(dd) The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar laws affecting
creditors’ rights generally from time to time in effect and by equitable
principles of general applicability.
(ee) The
Representatives’ Purchase Option has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws
affecting creditors’ rights generally from time to time in effect and by
equitable principles of general applicability.
(ff) To
the
Company’s knowledge, each of the Insider Letters has been duly authorized,
executed and delivered by the Founders and is a valid and binding agreement
of
the Founders, enforceable against them in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, or similar
laws affecting creditors’ rights generally from time to time in effect and by
equitable principles of general applicability.
(gg) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Statutory Prospectus and the Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.
8
(hh) No
consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein or in the Trust Agreement, the Warrant Agreement, the
Securities Purchase Agreement, the Warrant Subscription Agreement, the Escrow
Agreement, the Services Agreement, the Registration Rights Agreement, the
Representatives’ Purchase Option or the Insider Letters, except such as have
been obtained under the Act and such as may be required under the blue sky
laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Statutory Prospectus and the Prospectus.
(ii) Neither
the issue and sale of the Securities or the Representatives’ Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof or of the Trust Agreement, the Warrant
Agreement, the Securities Purchase Agreement, the Warrant Subscription
Agreement, the Escrow Agreement, the Services Agreement, the Registration Rights
Agreement, the Representatives’ Purchase Option or the Insider Letters will
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant to,
(i) the Memorandum and Articles of Association of the Company, (ii) the terms
of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to
which the Company is a party or bound or to which its property is subject,
or
(iii) any statute, law, rule, or regulation, judgment, order or decree
applicable to the Company of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its properties.
(jj) Except
as
set forth in the Statutory Prospectus and Prospectus, no holders of securities
of the Company have rights to the registration of such securities under the
Registration Statement.
(kk) The
historical financial statements and schedules of the Company included in the
Statutory Prospectus, the Prospectus and the Registration Statement present
fairly in all material respects the financial condition, results of operations
and cash flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The summary financial data set forth under the caption
“Summary Financial Data” in the Statutory Prospectus, Prospectus and
Registration Statement fairly present in all material respects, on the basis
stated in the Statutory Prospectus, Prospectus and Registration Statement,
the
information included therein. The Company is not party to any off-balance sheet
transactions, arrangements, obligations (including contingent obligations),
or
other relationships 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. The statistical, industry-related and market-related data included
in
the Registration Statement, the Statutory Prospectus and the Prospectus are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the sources from
which they are derived. All such data was derived from publicly available
sources.
9
(ll) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or, to the Company’s
knowledge, the Founders, or the property of any of them is pending or, to the
knowledge of the Company, threatened that (i) could reasonably be expected
to
have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby by the Company
or
(ii) could reasonably be expected to 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 in the Statutory Prospectus
and the Prospectus (exclusive of any supplement thereto).
(mm) The
Company owns or leases all such properties as are necessary to the conduct
of
its operations as presently conducted.
(nn) The
Company is not in violation or default of (i) any provision of its Memorandum
and Articles of Association, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound
or
to which its property is subject, in any material respects, or (iii) any (x)
in
any material respects, statute, law, rule, regulation, or (y) judgment, order
or
decree of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company. The
Company’s Memorandum and Articles of Association comply with the requirements of
all applicable Cayman Island laws, including the Companies Law (2004 Revision),
and are in full force and effect.
(oo) Xxxxxxxxx
Xxxx & Company, PC (“Xxxxxxxxx Kass”), who have certified certain financial
statements of the Company and delivered their report with respect to the audited
financial statements and schedules included in the Statutory Prospectus and
the
Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and regulations
thereunder.
(pp) The
Company maintains (i) effective internal control over financial reporting and
(ii) a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (C) access
to assets is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with
respect to any differences.
(qq) The
Company maintains effective “disclosure controls and procedures” (as defined
under Rule 13a-15(e) under the Exchange Act) that are designed to ensure that
information required to be disclosed by the Company in reports that it files
or
submits under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure.
10
(rr) There
are
no transfer taxes or other similar fees or charges under Federal law or the
laws
of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance
or
sale by the Company of the Securities or the Representatives’
Securities.
(ss) The
Company has filed all tax returns that are required to be filed by it or has
requested extensions thereof (except in any case in which the failure so to
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) 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 is 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
in
the Statutory Prospectus and the Prospectus (exclusive of any supplement
thereto).
(tt) The
Company possesses all licenses, certificates, permits and other authorizations
issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, would 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
in
the Statutory Prospectus and the Prospectus (exclusive of any supplement
thereto).
(uu) There
is
and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any
applicable provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 relating to loans and Sections 302 and 906 relating to
certifications.
(vv) There
is
and has been no failure on the part of the Company or, to the Company’s
knowledge, any of the Company’s officers or directors, in their capacities as
such, to comply with (as and when applicable), and immediately following the
Effective Date the Company will be in compliance with, (a) Part 8 of the
American Stock Exchange’s “AMEX Company Guide,” as amended and (b) all other
provisions of the American Stock Exchange corporate governance requirements
set
forth in the AMEX Company Guide, as amended.
11
(ww) Neither
the Company, nor to the Company’s knowledge, any Insider, officer, agent,
employee, or affiliate is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the Company, the
Founders
and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(xx) The
operations of the Company are and have been conducted in compliance with
applicable financial recordkeeping and reporting requirements and the money
laundering statutes and 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.
(yy) Neither
the Company, nor, after due inquiry, to the Company’s knowledge, the Founders or
any director, officer, agent, employee, affiliate is currently subject to any
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any person currently
subject to any sanctions administered by OFAC.
(zz) Neither
the Company, nor, after due inquiry, to the Company’s knowledge, the Founders or
any officer or director of the Company has violated: (a) the Bank Secrecy Act,
as amended, (b) the Money Laundering Laws, or (c) the Uniting and Strengthening
of America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations
promulgated under any such law, or any successor law.
(aaa) Except
as
disclosed in the Registration Statement, the Statutory Prospectus and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of Susquehanna
Financial Group, LLLP or Ladenburg Xxxxxxxx & Co. Inc. and
(ii) does not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of Susquehanna
Financial Group, LLLP or Ladenburg Xxxxxxxx & Co. Inc.
(bbb) To
the
Company’s knowledge, all information contained in the questionnaires (the
“Questionnaires”) completed by the Insiders and provided to
the
Underwriters is true and correct in all material respects and the Company has
not become aware of any information which would cause the information disclosed
in the Questionnaires completed by the Founders and the Company’s other
officers, directors and special advisors to become inaccurate and
incorrect.
12
(ccc) Except
as
disclosed in the Registration Statement, the Statutory Prospectus and the
Prospectus, prior to the date hereof, none of the Company,
the Founders, the Company’s officers and directors or any affiliate thereof had,
and as of the Closing Date, the Company, and such officers and directors, the
Founders and their affiliates will have had: (a) any specific Business
Combination under consideration or contemplation or (b) any interactions or
discussions with any target business relating to a possible Business
Combination.
(ddd) Except
as
described in the Registration Statement, the Statutory Prospectus and the
Prospectus, there are no claims or payments, arrangements, contracts, agreements
relating to, or understandings that could give use to a claim for, the payment
of a brokerage commission or finder’s, consulting, origination or similar fee by
the
Company or the Founders with respect to the sale of the Securities hereunder
or
any other arrangements, agreements or understandings of the Company or, the
Founders that may affect the Underwriters’ compensation, as determined by the
Financial Industry Regulatory Authority (“FINRA”).
(eee) The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to: (i) any person, as a finder’s fee, consulting
fee or otherwise, in consideration of such person raising capital for the
Company or introducing to the Company persons who raised or provided capital
to
the Company; (ii) to any FINRA member; or (iii) to any person or entity that
has
any direct or indirect affiliation or association with any FINRA member, within
the twelve months prior to the Effective Date, other than payments to the
Underwriters.
(fff) No
officer, director, or beneficial owner of any class of the
Company’s securities (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 of, or a person
associated or affiliated with a member of, FINRA.
(ggg) No
Company Affiliate is an owner of stock or other securities of any member of
FINRA
(other than securities purchased on the open market).
(hhh) To
the
Company’s knowledge, no Company Affiliate has made a subordinated loan to any
member of FINRA.
(iii) No
proceeds from the sale of the Securities (excluding underwriting compensation
as
disclosed in the Statutory Prospectus and
the
Prospectus) will be paid to any FINRA member, or any persons associated or
affiliated with a member of FINRA.
(jjj) Except
for the Representatives’ Purchase Option, the Company has not issued any
warrants or other securities, or granted any options, directly or indirectly
to
anyone who is a potential underwriter in the offering or a related person (as
defined by FINRA rules) of such an underwriter within the 180-day period prior
to the initial filing
date of the Registration Statement.
13
(kkk) 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.
(lll) To
the
Company’s knowledge, 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. “FINRA member participating in the
Offering” includes any associated person of a FINRA member that is participating
in the Offering, any members of such associated person’s immediate family, and
any affiliate of an FINRA member that is participating in the
Offering.
(mmm) The
Company has not taken, directly or indirectly, any action designed to or that
would constitute 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 Securities.
(nnn) None
of
the Company’s officers or directors is subject to any non-competition agreement
or non-solicitation agreement with any employer or
prior
employer which could materially affect his ability to be and act in the capacity
of an employee, officer, director or special advisor of the Company or a Founder
or Sponsor.
(ooo) The
Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other entity.
(ppp) No
relationship, direct or indirect, exists between or among any of the Company
or
any affiliate of the Company, on the one hand, and any
director, officer, shareholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Act or
the
Exchange Act to be described in the Statutory Prospectus or the Prospectus
which
is not described as required. There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of their respective family members,
except as disclosed in the Registration Statement, Statutory Prospectus and
the
Prospectus. The Company has not extended or maintained credit, arranged for
the
extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or officer of the Company.
(qqq) The
Company has not offered, or caused the Underwriters to offer, the Underwritten
Securities 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.
14
(rrr) Upon
delivery and payment for the Units on the Closing Date and the filing of audited
financial statements on Form 6-K with the Commission,
the Company will not be subject to Rule 419 under the Act and none of the
Company’s outstanding securities will be deemed to be a “xxxxx stock” as defined
in Rule 3a51-1 under the Exchange Act.
(sss) Under
current laws and regulations of the Cayman Islands and any political subdivision
thereof, all dividends and other distributions declared and payable on the
Securities or the Representatives’ Securities may be paid by the Company to the
holder thereof in United States dollars that may be converted into foreign
currency and freely transferred out of Cayman Islands and all such payments
made
to holders thereof who are non residents of the Cayman Islands will not be
subject to income, withholding or other taxes under laws and regulations of
the
Cayman Islands or any political subdivision or taxing authority thereof or
therein and will otherwise be free and clear of any other tax, duty, withholding
or deduction in the Cayman Islands or any political subdivision or taxing
authority thereof or therein and without the necessity of obtaining any
governmental authorization in the Cayman Islands or any political subdivision
or
taxing authority thereof or therein.
(ttt) No
stamp
or other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Underwriters
to
the United States, the Cayman Islands, the PRC, Hong Kong or any political
subdivision or taxing authority thereof or therein in connection with (a) the
issuance of the Securities and the Representatives’ Securities by the Company,
(b) the sale and delivery of the Securities by the Underwriters as part of
the
Underwriters’ distribution of the Securities as contemplated hereunder, and (c)
the consummation by the Company of any other transaction contemplated in this
Agreement or the performance by the Company of its obligations under this
Agreement.
(uuu) No
stamp
or other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Company or any
of
the subsidiaries to the United States, the Cayman Islands, the PRC or Hong
Kong
or any political subdivision or taxing authority thereof or therein in
connection with (a) the issuance of the Securities or Representatives’
Securities by the Company, and (b) the sale and delivery of the Securities
by
the Underwriters as part of the Underwriters’ distribution of the Securities as
contemplated hereunder.
(vvv) None
of
the Company, nor any of their officers or directors has paid, promised or
authorized the payment, directly or indirectly, of any monies or any thing
of
value, in each case to the extent that such payment, promise or authorization
constitutes bribery in breach of applicable laws of the Cayman Islands, PRC
or
Hong Kong, to any government official, political or governmental organization
or
employee of any political party or to any other person charged with similar
public or quasi-public duties or for the purpose of influencing any act or
decision of such official or of the government to obtain or retain business,
or
direct business to the Company or any of its subsidiaries other than, in each
case, any payments required by any applicable jurisdiction or permitted by
any
applicable laws (any such act, a “Prohibited Payment”). A Prohibited Payment
does not include the payment of reasonable and bona fide expenditures, such
as
travel and lodging expenses, which are directly related to the promotion,
demonstration or explanation of products or services, or the execution or
performance of a contract with a government authority or agency thereof;
provided that such payments are permissible under applicable
laws.
15
(www)
This
Agreement is in proper form under the laws of the Cayman Islands for the
enforcement thereof against the Company in accordance with the laws of the
Cayman Islands and to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman Islands of this Agreement; it is
not
necessary that this Agreement, the Prospectus or any other document be filed
or
recorded with any court or other authority in the Cayman Islands or that any
Cayman Islands stamp duty or similar tax be paid on or in respect of this
Agreement, or any other document to be furnished hereunder or
thereunder.
(xxx) The
agreement of the Company to the choice of law provisions set forth in Section
16
of this Agreement will be recognized by the courts of the Cayman Islands and
the
PRC and are legal, valid and binding; the Company and its subsidiaries can
xxx
and be sued in its own name under the laws of the Cayman Islands; the
irrevocable submission by the Company to the jurisdiction of a New York Court
and the appointment of Xxxxxxxx Xxxxxx as its authorized agent for the purpose
described in Section 16 of this Agreement is legal, valid and binding; service
of process effected in the manner set forth in Section 16 of this Agreement
will
be effective to confer valid personal jurisdiction over the Company; and a
judgment obtained in a New York court arising out of or in relation to the
obligations of the Company under this Agreement would be enforceable against
the
Company in the courts of the Cayman Islands without further review of the
merits.
Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with
the
offering of the Securities shall be deemed a representation and warranty by
the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase
and Sale.
a)
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally
and
not jointly, to purchase from the Company, at a purchase price of $9.65 per
Unit, the amount of the Underwritten Securities set forth opposite such
Underwriter’s name in Schedule
I
hereto.
Subject to and only upon the Closing, the $[ ] previously paid to the
Representatives as an advance against its expenses shall be credited to the
Company by reducing the fees and other expenses payable by the Company pursuant
to this Agreement upon the sale of the Underwritten Securities.
(b) Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an
option
to the Representatives to purchase up to 1,500,000 Option Securities at the
same
purchase price per Unit as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time on or before the 45th
day
after the date of the Prospectus upon written notice by the Representatives
to
the Company setting forth the number of Option Securities as to which the
Representatives are exercising the option and the settlement date.
16
(c) In
addition to the discount from the public offering price represented by the
Purchase Price set forth in the first sentence of Section 2(a)
of
this Agreement, the Company hereby agrees to pay to the Underwriters a deferred
discount of $0.35 per Unit (including both Underwritten Securities and Option
Securities) purchased hereunder (the “Deferred Discount”). The Deferred Discount
will be payable from amounts on deposit in the Trust Account if and when the
Company consummates a Business Combination. The Underwriters hereby agree that
if no Business Combination is consummated within the time period provided in
the
Trust Agreement and the funds held under the Trust Agreement are distributed
to
the holders of the Ordinary
Shares sold
pursuant to this Agreement (the “Public Stockholders”), (i) the Underwriters
will forfeit any rights or claims to the Deferred Discount and (ii) the trustee
under the Trust Agreement is authorized to distribute the Deferred Discount
to
the Public Stockholders on a pro rata basis.
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Securities and the Option
Securities (if the option provided for in Section
2(b) hereof shall have been exercised on or before the third Business Day prior
to the Closing Date) shall be made at 10:00 AM, New York City time, on
[_________], 2008, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the “Closing Date”).
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof by wire
transfer payable in same-day funds to an account specified by the Company and
to
the Trust Account as described below in this Section 3. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company (“DTC”) unless the Representatives
shall otherwise instruct.
(a) Payment
for the Underwritten Securities shall be made as follows: $9.65 per Underwritten
Security shall
be
deposited in the Trust Account pursuant to the terms of the Trust Agreement
and
$100,000 shall be paid to the order of the Company upon delivery to the
Representatives of certificates (in form and substance satisfactory to the
Representatives) (or through the facilities of DTC) for the account of the
Underwriters representing the Underwritten Securities. The Underwritten
Securities shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two
Business Days prior to the Closing Date. The Company will permit the
Representatives to examine and package the Underwritten Securities for delivery,
at least one Business Day prior to the Closing Date. The Company shall not
be
obligated to sell or deliver the Underwritten Securities except upon tender
of
payment by the Representatives for all the Underwritten Securities.
(b) Payment
for the Option Securities shall be made as follows: $9.65 per Option Security
shall be deposited in the Trust Account pursuant to the terms of the Trust
Agreement upon delivery to the Representatives of certificates (in form and
substance satisfactory to the Representatives) (or through
the facilities of DTC) for the account of the Underwriters representing the
Option Securities. The certificates representing the Option Securities to be
delivered will be in such denominations and registered in such names as the
Representatives request not less than two Business Days prior to the Closing
Date and will be made available to the Representatives for inspection, checking
and packaging at the aforesaid office of the Company’s transfer agent or
correspondent not less than one Business Day prior to such Closing
Date.
17
If
the
option provided for in Section 2(b) hereof is exercised after the third Business
Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, c/o
Susquehanna Financial Group, LLLP at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx,
XX
00000, on the date specified by the Representatives (which shall be within
three
Business Days after exercise of said option) for the respective accounts of
the
several Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to the Trust Account as described
above in Section 3(b). If settlement for the Option Securities occurs after
the
Closing Date, the Company will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date
the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
(c) Payment
and Delivery.
Delivery and payment for the Representatives’ Purchase Option shall be made on
the Closing Date. The Company shall deliver to the Representatives, upon payment
therefor, certificates for the Representatives’ Purchase Option in the name or
names and in such authorized denominations as the Representatives may
request.
4. Offering
by Underwriters.
It is
understood that the several Underwriters propose to offer the Securities for
sale to the public as set forth in
the
Prospectus (the “Offering”).
5. Agreements.
The
Company agrees with the several Underwriters that:
(a) The
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless the Company
has furnished you a copy for your review prior to filing and will not file
any
such proposed amendment or supplement to which you reasonably object. The
Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the Representatives
(i)
when the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (ii) when
any
amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or
for
any supplement to the Prospectus or for any additional information, (iv) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of the receipt by
the
Company of any notification with respect to the suspension of the qualification
of the Securities or the Representatives’ Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the occurrence of any such suspension or objection to the
use
of the Registration Statement and, upon such issuance, occurrence or notice
of
objection, to obtain as soon as reasonably possible the withdrawal of such
stop
order or relief from such occurrence or objection, including, if necessary,
by
filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration
statement declared effective as soon as practicable.
18
(b) If,
at
any time prior to the filing of the Prospectus pursuant to Rule 424(b), any
event occurs as a result of which the Statutory Prospectus
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made at such time not misleading, the
Company will (i) notify promptly the Representatives so that any use of the
Statutory Prospectus may cease until it is amended or supplemented; (ii) amend
or supplement the Statutory Prospectus to correct such statement or omission;
and (iii) supply any amendment or supplement to you in such quantities as you
may reasonably request.
(c) If,
at
any time when a prospectus relating to the Securities or the Representatives’
Securities is required to be delivered under the Act (including in circumstances
where
such requirement may be satisfied pursuant to Rule 172), any event occurs as
a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made or the circumstances then prevailing not misleading, or if it shall
be
necessary to amend the Registration Statement or supplement the Prospectus
to
comply with the Act or the rules thereunder, the Company promptly will (i)
notify the Representatives of any such event; (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5,
an amendment or supplement which will correct such statement or omission or
effect such compliance; and (iii) supply any supplemented Prospectus to you
in
such quantities as you may reasonably request.
(d) As
soon
as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158.
(e) The
Company will not make any offer relating to the Securities or the
Representatives’ Securities that constitutes or would constitute a Free Writing
Prospectus or a portion thereof
required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act.
(f) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a
prospectus by an Underwriter or dealer may be required by the Act (including
in
circumstances where such requirement may be satisfied pursuant to Rule 172),
as
many copies of each Preliminary Prospectus, the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the
expenses of printing or other production of all documents relating to the
offering.
19
(g) The
Company will arrange, if necessary, for the qualification of the Securities
and
the Representatives’ Securities for sale under the laws of such jurisdictions as
the
Representatives may designate and will maintain such qualifications in effect
so
long as required for the distribution of the Securities
and the
Representatives’ Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities
or the
Representatives’ Securities,
in any
jurisdiction where it is not now so subject.
(h) Except
as
set forth below, the Company will not, without the prior written consent of
the
Representatives, (i) offer, sell, contract to sell,
pledge, hypothecate, grant any option to purchase or otherwise dispose of or
transfer (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with respect
to,
any other Units, Ordinary
Shares,
Warrants or any securities convertible into, or exercisable, or exchangeable
for, Ordinary
Shares
or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of the Units,
Ordinary
Shares
or
Warrants, Ordinary
Shares
issuable
upon exercise of the Warrants or any securities convertible into or exercisable
or exchangeable for Ordinary
Shares
or
Warrants or other rights to purchase Ordinary
Shares
or any
such securities, whether any such transaction is to be settled by delivery
of
Ordinary
Shares
or such
other securities, in cash or otherwise; or publicly announce an intention to
effect any such transaction in (i) or (ii), during the period commencing on
the
date hereof and ending 180 days after the date of this Agreement, provided,
however, that if (1) during the last 17 days of the 180-day restricted period
the Company issues an earnings release or material news or a material event
relating to the Company occurs, or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day restricted
period, then the foregoing restrictions shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided
further, however, that the Company may (i) issue and sell the Sponsors’
Warrants, (ii) issue and sell the Representatives’
Securities, (iii)
issue
and sell the Option Securities on exercise of the option provided for in Section
2(b) hereof and (iv) contract to sell, and issue, Ordinary
Shares
in
connection with the consummation of its initial Business Combination. The
Company will provide the Representatives and any co-managers and each individual
subject to the restricted period pursuant to the lockup letters in the form
attached as Exhibit
B
with
prior notice of any such announcement that gives rise to an extension of the
restricted period.
20
(i) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that could 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 Securities
or the
Representatives’ Securities.
(j) The
Company hereby engages the Representatives, on a non-exclusive basis, as its
agent for the solicitation of the exercise of the Warrants. The Company will
(i)
assist the Representatives with respect to such solicitation, if requested
by
the Representatives, and (ii) at the Representatives’ request, provide the
Representatives, and direct the Company’s transfer and warrant agent to provide
to the Representatives, at the Company’s cost, lists of the record and, to the
extent known, beneficial owners of, the Warrants. Commencing one year from
the
Effective Date, the Company will pay a Representative a commission of five
percent (5%) of the exercise price of the Warrants for each Warrant exercised,
payable on the date of such exercise, on the terms provided for in the Warrant
Agreement, only if permitted under the rules and regulations of the NASD and
only to the extent that an investor who exercises his Warrants designates,
in
writing, that such Representative solicited his exercise. The Representatives
may engage sub-agents in its solicitation efforts. The Company agrees to
disclose the arrangement to pay such solicitation fees to the Representatives
in
any prospectus used by the Company in connection with the registration of the
Ordinary Shares underlying the Warrants.
(k) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Prospectus
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus and all amendments or supplements to
any
of them, as may, in each case, be reasonably requested for use in connection
with the offering and sale of the Securities
and the
Representatives’ Securities;
(iii)
the preparation, printing, authentication, issuance and delivery of certificates
for the Securities and the Representatives’ Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities and the Representatives’
Securities;
(iv) the printing (or reproduction) and delivery of this Agreement and all
other
agreements or documents printed (or reproduced) and delivered in connection
with
the offering of the Securities
and the
Representatives’ Securities;
(v) the
registration of the Securities and the Representatives’
Securities
under the Exchange Act and the listing of the Securities and the Representatives’
Securities
on the American Stock Exchange; (vi) any registration or qualification of the
Securities and the Representatives’
Securities
for offer and sale under the securities or blue sky laws of the several states
and any foreign jurisdiction requested by the Representatives (in each case,
including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii) any filings
required to be made with FINRA (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such filings); (viii)
the Company’s expenses associated with the “due diligence” meetings arranged by
the Representatives; (ix) the payment, binding and delivery of transaction
“bibles” in form and style reasonably satisfactory to the Representatives and
their counsel and transaction lucite cubes or similar commemorative items;
a
style and quantity reasonably requested by the Representatives; (x) the fees
and
expenses of the Company’s accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; (xii) any
travel expenses of the Company’s directors, officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Securities, including the cost of any aircraft
chartered in connection with attending or hosting such meetings and
(xi)
all other costs and expenses incident to the performance by the Company of
its
obligations hereunder.
21
(l) For
a
period of at least five years from the Effective Date, or until such earlier
time upon which the Company is required to be liquidated
or ceases to be subject to public company reporting obligations, the Company
will use its best efforts to maintain the registration of the Units,
Ordinary
Shares and
Warrants
under the provisions of the Exchange Act. The Company will not deregister the
Units, the Ordinary
Shares or
the
Warrants under the Exchange Act (except in connection with a going private
transaction after the completion of the Business Combination) without the prior
written consent of the Representatives.
(m) The
Company shall have, by the date hereof, retained its registered 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 initial public offering.
As
soon as the Audited Financial Statements become available, the Company shall
promptly (but in any event within four business days after the Closing Date)
file a Current Report on Form 6-K with the Commission, which Report shall
contain the Company’s Audited Financial Statements. Additionally, upon the
Company’s receipt of the proceeds from the exercise of all or any portion of the
option provided for in Section 2(b) hereof, the Company shall promptly (but
in
any event within four business days after the Closing Date for the sale of
the
Option Securities) file a Current Report on Form 6-K with the Commission, which
report shall disclose the Company’s sale of the Option Securities and its
receipt of the proceeds therefrom.
(n) For
a
period of at least five years from the Effective Date or until such earlier
time
that the Company is required to be liquidated or ceases
to
be subject to public company reporting obligations, the Company, at its expense,
shall cause its regularly engaged registered independent certified public
accountants to review (but not audit) the Company’s financial statements for
each of the first three fiscal quarters prior to the announcement of quarterly
financial information, the filing of the Company’s Form 10-Q quarterly report
and the mailing, if any, of quarterly financial information to
stockholders.
(o) For
a
period of five years from the Effective Date or until such earlier time that
the
Company is required to be liquidated or ceases to
be
subject to public company reporting obligations, the Company will furnish to
the
Representatives such copies of 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 (provided that by filing such financial
statements and other periodic and special reports with the Commission via XXXXX
the Company shall be deemed to have delivered such items to the Representatives)
and such additional documents and information with respect to the Company as
the
Representatives may from time to time reasonably request.
22
(p) For
a
period of at least five years from the Effective Date or until such earlier
time
that the Company is required to be liquidated or ceases
to
be subject to public company reporting obligations, the Company shall retain
a
transfer and warrant agent.
(q) Until
consummation of the initial Business Combination, in no event will the fees
payable under the Services Agreement be more than $7,500 per
month
in the aggregate. Upon the consummation of the initial Business Combination,
the
Services Agreement shall terminate.
(r) Except
as
set forth in this subsection and the Services Agreement, the Company shall
not
pay the Founders or
any of
the Company’s officers or directors or any of their affiliates any fees or
compensation for services rendered to the Company prior to, or in connection
with, the consummation of a Business Combination; provided however, that
officers, directors and affiliates may receive reimbursement for out-of-pocket
expenses incurred by them in connection with an initial Business Combination
to
the extent that such expenses do not exceed the amount of available proceeds
not
deposited in the Trust Account and the amount of interest income that may be
released from the Trust Account as described in the Registration Statement;
provided further, however, that if the initial Business Combination is
consummated, to the extent that such out-of-pocket expenses were not reimbursed
due to the operation of the immediately preceding proviso, the Company may
reimburse such out-of-pocket expenses.
(s) The
Company will apply the net proceeds from the offering received by it in a manner
consistent with the applications described under the caption
“Use of Proceeds” in the Statutory Prospectus and the Prospectus.
(t) In
the
event any person or entity (regardless of any FINRA affiliation or association)
is engaged to assist the Company in its search for a merger
candidate or to provide any other merger and acquisition services, the Company
will provide the following to (A) FINRA for a period of ninety days following
the date of the Prospectus and (B) the Representatives at any time prior to
the
consummation of a 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 stockholder approval for the Business
Combination.
(u) The
Company shall advise FINRA if it is aware that any 5% or greater stockholder
of
the Company becomes an affiliate or associated person of
a
FINRA member participating in the distribution of the Company’s
Securities.
23
(v) The
Company shall cause the proceeds of the offering to be held in the Trust Account
to be invested only in United States “government securities,”
within the meaning of Section 2(a)(16) of the Investment Company Act, having
maturity of 180 days or less, or in one or more money market funds meeting
the
conditions specified in Rule 2a-7 of the Investment Company Act, as set forth
in
the Trust Agreement and disclosed in the Statutory Prospectus and 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.
(w) During
the period prior to the Company’s initial Business Combination, the Company may
instruct the trustee under the Trust Agreement that up
to an
aggregate of $3,000,000 of interest income (after appropriate reserve for
payment of taxes) be released to the Company solely for the purposes described
in the “Use of Proceeds” section of the Registration Statement under the caption
“Use of net proceeds not held in trust and up to amounts available from interest
income earned on the trust account.” After an aggregate of $3,000,000 is
released to the Company, any interest income earned on the amounts held in
the
Trust Account (net of taxes payable thereon) will remain in the Trust Account
until the earlier of the consummation of the Company’s initial Business
Combination or the Liquidation.
(x) The
Company will reserve and keep available that maximum number of its authorized
but unissued securities which are issuable upon exercise
of any of the Warrants, Sponsors’ Warrants, Representatives’ Purchase Option,
Representatives’ Units and Representatives’ Warrants outstanding from time to
time.
(y) Prior
to
the consummation of a Business Combination or the Liquidation, the Company
shall
not issue any Ordinary Shares, Warrants 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.
(z) Prior
to
the consummation of a Business Combination or the Liquidation, the Company
shall
cause its audit committee to review and approve all
expense reimbursements made to its officers, directors and affiliates and any
expense reimbursements payable to members of the Company’s audit committee will
be reviewed and approved by the Company’s board of directors, with any
interested directors abstaining from such review and approval.
(aa) 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 the initial 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 3a-51-1 under the Exchange Act
during such period.
(bb) The
Company will maintain “disclosure controls and procedures” (as defined under
Rule 13A-15(e) under the Exchange Act) and 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 GAAP and to
maintain accountability for assets, (iii) access to assets is permitted only
in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
24
(cc) The
Company will use its best efforts to effect and maintain the listing of the
Units, Ordinary Shares and Warrants on the American Stock
Exchange.
(dd) As
soon
as legally required to do so, the Company and its directors and officers, in
their capacities as such, shall take all actions necessary
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ee) The
Company and any of the Company’s directors or officers, in their capacities as
such, shall take all actions necessary to comply with any provision of the
(i)
Part 8 of the AMEX Company Guide and (b) all other provisions of the American
Stock Exchange corporate governance requirements
set forth in the AMEX Company Guide.
(ff) 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 Memorandum and Articles of
Association.
Except
in connection with the consummation of a Business Combination, the Company
will
not amend its Memorandum
and Articles of Association
without
the prior written consent of the Representatives, which consent shall not be
unreasonably withheld.
(gg) The
Company hereby agrees that prior to commencing its due diligence investigation
of any operating business which the Company seeks to
acquire for its initial Business Combination (“Target Business”) or obtaining
the services of any vendor, it will use its best efforts to cause the Target
Business or vendor to execute a waiver letter in the form attached hereto as
Exhibit
A.
(hh) Prior
to
the consummation of the initial Business Combination, the Company will submit
such transaction to the Company’s stockholders for their approval (“Business
Combination Vote”) even if the nature of the acquisition is such as would not
ordinarily require
stockholder approval under applicable state law; and in the event that the
Company does not effect a Business Combination ordinarily
require stockholder approval under applicable state law; and in the event that
the Company
does not effect a Business Combination
within
eighteen (18) months from
the
date of the Prospectus (subject to extension to twenty-four months, if the
Company has entered into a letter of intent or definitive agreement
with
respect to a
Business Combination within such eighteen (18) month period) of the Prospectus,
the Company will cease to exist and will
promptly distribute to all Public Stockholders an aggregate sum equal
to
the Company’s “Liquidation Value” (defined below). In the event that the Company
anticipates that it may not be
able
to consummate the initial Business Combination within the twenty-four (24)
month
period and seeks stockholder approval
to
extend the
period of
time
to
consummate
the Business Combination
by an additional twelve (12) months and the stockholders approve such an
extension and the Company does not then effect a Business Combination by
thirty-six (36) months
from the date of the Prospectus (the
“Extended Period”),
the
Company will cease to exist and
will
distribute to all Public Stockholders an aggregate sum equal to the Company’s
“Liquidation Value.” The
Company’s “Liquidation Value” shall mean the greater
of (i) the Company’s book value, as determined by the Company and agreed by
Xxxxxxxxx Xxxx
or
the independent registered public accounting firm then engaged by the Company
pursuant
to an audit, or (ii) the amount of funds in the Trust Account (including (a)
the
proceeds held
in
the Trust Account from the Offering and the sale of the Sponsors’ Warrants,
(b)
the
amount
held in the Trust Account representing the Deferred Discount and (c) any
interest income earned on the funds held in the Trust Account, net of taxes
payable thereon, that are not released to
the
Company to cover its operating expenses in accordance with Section 5(v)).
Only
Public
Stockholders
holding Ordinary Shares shall be entitled to receive liquidating distributions
and the Company
shall pay no liquidating distributions with respect to any other Ordinary Shares
of the Company.
The
twenty-four (24) month period described above shall be extended by
an additional
twelve (12) months only if (i) a majority of the shares voted by the
Public
Stockholders are voted to approve the Extended Period and if Public Stockholders
holding less than 33%
of the
Ordinary Shares sold in this Offering vote against the Extended Period and
elect
to convert their Ordinary Shares. Upon any such approval of the Extended Period,
the Company will convert shares, based upon the Conversion Price from those
Public Stockholders who affirmatively
requested such conversion and voted against the Extended Period. With respect
to
the initial Business Combination Vote, the Founders have agreed to vote all
of
their Founders’ Ordinary Shares in accordance with the vote cast by a majority
of the Ordinary Shares held by the Public Stockholders and any other Ordinary
Shares held by them, whenever and however acquired, in favor of such Business
Combination. At the time the Company seeks approval of the Extended Period
or
the initial Business Combination, the Company will offer to each Public
Stockholder holding Ordinary Shares the right to convert its shares at a per
share conversion price (the “Conversion Price”) equal to (A) the amount in the
Trust Account, inclusive of (x) the proceeds from this offering held in the
Trust Account, including the proceeds from the sale of the Sponsors’ Warrants,
(y) the amount held in the Trust Account representing the Deferred Discount
and
(z) any interest income earned on the funds held in the Trust Account, net
of
taxes payable thereon, that are not released to the Company to cover its
operating expenses in accordance with Section 5(v), divided by (B) the total
number of Units sold in the offering. If a majority of the shares voted by
the
Public Stockholders are voted to approve the initial Business Combination,
and
if Public Stockholders holding less than 35% of the Ordinary Shares sold in
the
Offering vote in the aggregate (a) against such approval of a Business
Combination and (b) against the Extended Period, and elect to convert their
Ordinary Shares, the Company will proceed with such Business Combination. If
the
Company elects to so proceed, it will convert shares, based upon the Conversion
Price, from those Public Stockholders who affirmatively requested such
conversion and who voted against the Business Combination. Only Public
Stockholders holding Ordinary Shares shall be entitled to receive distributions
from the Trust Account in connection with the approval of an initial Business
Combination, and the Company shall pay no distributions with respect to any
other holders or shares of capital stock of the Company. If Public Stockholders
holding 35% or more vote, in the aggregate (i) against approval of a potential
Business Combination and (ii) against the Extended Period, and elect to convert
their shares in connection with a vote against such Business Combination or
Extended Period, as the case may be, the Company will not proceed with such
Business Combination and will not convert such shares.
25
(ii) The
Company agrees that the initial Target Business(es) or any portion(s) thereof
that it acquires in a Business Combination must have an
aggregate fair market value equal to at least 80% of the amount in the Trust
Account (excluding the Underwriters’ Deferred Discount) at the time of such
acquisition. Fair market value must be determined by the Board of Directors
of
the Company based upon standards generally accepted by the financial community,
such as actual and potential sales, earnings and cash flow and book value and
the Board of Directors shall be permitted to rely upon the advice of the
Company’s financial advisors in connection therewith. If the Board of Directors
of the Company is not able to independently determine that the initial Target
Business(es) or any portion(s) thereof has a fair market value of at least
80%
of the Trust Account at the time of such Business Combination, 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
firms as to the fair market value of the target business if the Company’s Board
of Directors independently determines that the target business does have
sufficient fair market value.
(jj) Within
five Business Days following the consummation by the Company of a Business
Combination, the Company shall cause an announcement (“Business Combination
Announcement”) to be placed, at its cost, in The Wall Street Journal, The New
York Times and a third national publication to be selected by the
Representatives announcing the consummation of the Business Combination and
indicating that the Underwriters were the underwriters in the offering. The
Company shall supply
the Representatives with a draft of the Business Combination Announcement and
provide the Representatives with a reasonable advance opportunity to comment
thereon. The Company will not place the Business Combination Announcement
without the final approval of the Representatives, which approval will not
be
unreasonably withheld or delayed.
26
(kk) Upon
the
consummation of the initial Business Combination, the Company will pay to the
Representatives, on behalf of the Underwriters, the Deferred Discount. Payment
of the Deferred Discount will be made out of the proceeds of this offering
held
in the Trust Account. The Underwriters shall have no
claim to
payment of any interest earned on the portion of the proceeds held in the Trust
Account representing the Deferred Discount. If the Company fails to consummate
its initial Business Combination within the required time period set forth
in
the Registration Statement, the Deferred Discount will not be paid to the
Representatives and will, instead, be included in the Liquidation distribution
of the proceeds held in the Trust Account made to the Public Stockholders.
In
connection with any such Liquidation, the Underwriters forfeit any rights or
claims to the Deferred Discount, including any accrued interest
thereon.
6. Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Underwritten Securities
and
the
Option Securities, as the case may be, shall be subject to the accuracy of
the
representations and warranties on the part of the Company contained herein
as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) The
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); and
no stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The
Company shall have requested and caused Xxxxxxxx Xxxxxx, counsel for the
Company, Xxxxxxx Xxxxxx, Cayman Islands counsel for the Company and Han Kun
Law
Offices, People’s Republic of China (“PRC”) counsel for the Company, to have
furnished to the Representatives their opinions, dated the Effective Date and
addressed to the Representatives in the forms attached as Exhibit
C-1,
Exhibit
C-2
and
Exhibit
C-3,
respectively. In rendering such opinions, Xxxxxxxx Xxxxxx may rely as
to
matters involving the application of laws of any jurisdiction other than the
Delaware General Corporation Law, the State of New York, and the Federal laws
of
the United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are reasonably satisfactory to counsel for the Underwriters.
In
rendering such opinion, each such counsel
may also
rely as to matters of fact, to the extent they deem proper, on certificates
of
responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (b) shall also include any supplements thereto
at
the Closing Date.
27
(c) The
Representatives shall have received from Blank Rome LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed
to
the Representatives, with respect to the issuance and sale of the Securities
and
the Representatives’ Securities, the Registration Statement, the
Statutory Prospectus, the Prospectus (together with any supplement thereto)
and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Blank Rome LLP may
rely
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials and the opinion of
Xxxxxxx Xxxxxx as to matters of Cayman Islands law.
(d) The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chief Executive Officer and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement each Preliminary Prospectus, the Prospectus and
any
amendment or supplement thereto, and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions
on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no
stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the
date of the most recent financial statements included in the Statutory
Prospectus and the Prospectus (exclusive of any supplement thereto), there
has
been no 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
in
the Statutory Prospectus and the Prospectus (exclusive of any supplement
thereto).
(e) The
Company shall have requested and caused Xxxxxxxxx Kass to have furnished to
the
Representatives, at the Execution Time and at
the
Closing Date, letters, dated respectively as of the Execution Time and as of
the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, confirming that they are registered independent accountants
within the meaning of the Act and the Exchange Act and the applicable rules
and
regulations adopted by the Commission thereunder and that they have performed
a
review of the unaudited interim financial information of the Company for the
[_________ ]-month period ended [ __________] and as at [___________ ], in
accordance with Statement on Auditing Standards No. 100 and stating in effect
that:
28
(i) in
their
opinion the audited financial statements and financial statement schedules
included in the Registration Statement, the Statutory Prospectus and the
Prospectus and reported on by them comply as to form with the applicable
accounting requirements
of the
Act and the related rules and regulations adopted by the
Commission;
(ii) on
the
basis of a reading of the latest unaudited financial statements made available
by the Company; their limited review, in accordance with standards established
under Statement on Auditing Standards No. 100, of the unaudited interim
financial
information for the [__________] -month period ended [ ________] and as at
[________ ] [,as indicated in their report dated __________] ; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter;
a
reading of the minutes of the meetings, if any, of the stockholders, directors
and audit, governance and nominating committees of the Company; and inquiries
of
certain officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to transactions and
events subsequent to [_________], nothing came to their attention which caused
them to believe that:
(1) any
unaudited financial statements included in the Registration Statement, the
Statutory Prospectus and the Prospectus do not comply as to form with applicable
accounting requirements of the Act and with the related rules and regulations
adopted by the Commission with
respect
to registration statements on Form F-1; and said unaudited financial statements
are not in conformity with generally accepted accounting principles applied
on a
basis substantially consistent with that of the audited financial statements
included in the Registration Statement, the Statutory Prospectus and the
Prospectus; and
(2) with
respect to the period subsequent to [_________], there were any changes, at
a
specified date not more than five days prior to the date
of the
letter, in the long-term debt of the Company or capital stock of the Company
or
decreases in the stockholders’ equity of the Company net loss or loss before
income taxes or in total or per share amounts of net loss to the Company as
compared with the amounts shown on the [_________]
[insert
same date as above] balance sheet included in the Registration Statement, the
Statutory Prospectus and the Prospectus, or for the period from [_________]
[insert
date one day after the date inserted above] to such specified date there were
any decreases, as compared with [_________]
[insert
the appropriate comparative period; e.g.: the corresponding period in the
preceding year; or, the corresponding period in the preceding quarter; or,
if no
appropriate period exists, insert dollar amounts for each item] in [net revenues
or income before income taxes or in total or per share amounts of net income
of
the Company and its subsidiaries] [add to the list of items in brackets above
any other appropriate income statement items; e.g.: operating income; net
interest income; net interest income after provision for loan losses], except
in
all instances for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives;
(i) they
have
performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived
from the
general accounting records of the Company) set forth in the Registration
Statement, the Statutory Prospectus and the Prospectus, including the
information set forth under the captions “Dilution” and “Capitalization” in the
Statutory Prospectus and the Prospectus, agrees with the accounting records
of
the Company, excluding any questions of legal interpretation.
29
References
to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
(f) Subsequent
to the Execution Time or, if earlier, the dates as of which information is
given
in the Registration Statement (exclusive of any amendment
thereof), the Statutory Prospectus and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section
6 or (ii) any change, or any development involving a prospective change, in
or
affecting the condition (financial or otherwise), 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 in the
Statutory Prospectus and the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above, is,
in
the sole judgment of the Representatives, so material and adverse as to make
it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Statutory Prospectus and the Prospectus (exclusive
of
any supplement thereto).
(g) Prior
to
the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
(h) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting or other arrangements of the transactions
contemplated hereby.
(i) The
Securities and the Representatives’ Securities shall be duly listed, subject to
notice of issuance, on the American Stock Exchange, satisfactory evidence of
which shall have
been
provided to the Representatives.
(j) On
the
Effective Date, the Company shall have delivered to the Representatives executed
copies of the Trust Agreement, the Warrant Agreement,
the Securities Purchase Agreement, the Warrant Subscription Agreement, the
Escrow Agreement, the Services Agreement, and each of the Insider
Letters.
(k) On
or
prior to the Closing Date, the Company shall have delivered to the
Representatives an executed copy of the Representatives’ Purchase
Option.
(l) At
the
Execution Time, the Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit
B
hereto
from each
officer and director of the Company and the Founders addressed to the
Representatives.
30
If
any of
the conditions specified in this Section 6 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the
Representatives. Notice of such cancellation shall be given to the Company
in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
office of Blank Rome LLP, counsel for the Underwriters,
at The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
unless otherwise indicated herein, on the Closing Date.
7. Reimbursement
of Underwriters’ Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because
of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any
of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives on demand for all out-of-pocket expenses (including fees
and
disbursements of counsel and “road show” and diligence expenses) that shall have
been reasonably incurred by them in connection with the proposed purchase and
sale of the Securities.
8. Indemnification
and Contribution.
b)
The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities and
the
Representatives’ Securities
as
originally filed or in any amendment thereof, or in any Preliminary Prospectus
or the Prospectus or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party,
as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in
conformity with written information furnished to the Company by or on behalf
of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
31
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the
Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth (i) in the last paragraph of the cover page regarding delivery of
the
Securities and, under the heading “Underwriting”, (ii) the list of Underwriters
and their respective participation in the sale of the Securities, (iii) the
sentences related to concessions and reallowances and (iv) the paragraph related
to stabilization, syndicate covering transactions and penalty bids in the
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Preliminary Prospectus or the Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will,
if
a claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the
forfeiture by the indemnifying party of substantial rights and defenses and
(ii)
will not, in any event, relieve the indemnifying party from any obligations
to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party’s choice at the indemnifying party’s expense
to represent the indemnified party in any action for which indemnification
is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the indemnified party would present such counsel with a conflict
of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party authorizes (in its sole discretion) the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party
will not, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise
or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding.
32
(d) In
the
event that the indemnity provided in paragraph (a), (b) or (c) of this Section
8
is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively “Losses”) to which the
Company and one or more of the Underwriters may be subject in such proportion
as
is appropriate to reflect the relative benefits received by the Company on
the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except
as
may be provided in any agreement among underwriters relating to the offering
of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not
only such relative benefits but also the relative fault of the Company on the
one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be
equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to
be
equal to the total underwriting discounts and commissions, in each case as
set
forth on the cover page of the Prospectus. Relative fault shall be determined
by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand
or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any
person who was not guilty of such fraudulent misrepresentation. For purposes
of
this Section 8, each person who controls an Underwriter within the meaning
of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default
by an Underwriter.
If any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by
such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take
up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of
Securities set forth opposite the names of all the remaining Underwriters)
the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities,
this
Agreement will terminate without liability to any nondefaulting Underwriter
or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
33
10. Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such delivery and payment (i) any
domestic or international event or act or occurrence has materially disrupted,
or in the Representatives’ opinion will, in the immediate future, materially
disrupt, general securities markets in the United States,
(ii)
trading in the Company’s Units, Ordinary
Shares
or
Warrants shall have been suspended by the Commission or the American Stock
Exchange or trading in securities generally on the New York Stock Exchange
or
the American Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on either of such exchanges, (iii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war,
(v)
a
moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities market, (vi) 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 Representatives’ opinion, make it
inadvisable to proceed with the delivery of the Securities,
(vii)
any of the Company’s representations, warranties or covenants hereunder are
breached, (viii) if the Representatives shall have become aware after the date
hereof of such a material adverse change in the condition, financial or
otherwise, business, properties, prospects or results of operations 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,
the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Statutory Prospectus or
the
Prospectus (exclusive of any supplement thereto).
11. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company
or its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section
8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
34
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed,
delivered or telefaxed to the Susquehanna Financial Group, LLLP General Counsel
(fax no.: (000)
000-0000)
and
confirmed to it at 000
Xxxx
Xxx, Xxxxx 000,
Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000,
Attention: Associate General Counsel, and Ladenburg Xxxxxxxx & Co. Inc. (fax
no. (000) 000-0000) and confirmed to it at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Attention: _________; or, if sent to the Company, will
be
mailed, delivered or telefaxed to China Ascendance Acquisition Corporation
(fax
no.: 00
(00)
0000-0000) and
confirmed to it at 108
North
4th
Ring
East Road, QianHe JiaYuan, Xxxxxxxx 0, Xxxxx 000,
Xxxxxxx
000000, Xxxxx,
Attention: Xxxxxxx Ping Du, Chief Executive Officer.
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section
8
hereof, and no other person will have any right or obligation
hereunder.
14. No
Fiduciary Duty.
The
Company hereby acknowledges that (a) the purchase and sale of the Securities
and
the Representatives’ Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, on the one hand, and the
Underwriters and any affiliate through which it may be acting, on the other,
(b)
the Underwriters are acting as principal and not as an agent or fiduciary of
the
Company and (c) the Company’s engagement of the Underwriters in connection with
the offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Company agrees
that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services
of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
15. Integration.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter
hereof.
16. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. The Company hereby agrees that any action, proceeding
or
claim against it arising out of, or relating in any way to this Agreement shall
be brought and enforced in the courts of the State of New York of the United
States of America for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. The Company irrevocably appoints Xxxxxxxx
Xxxxxx as its agent for service of process in the State of New York to receive,
for the Company on its behalf, service of process in any proceeding. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it c/o Graubard Xxxxxx, The
Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxxx X. Xxxxxx, with
a
copy to the Company at the address set forth in Section 12 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim. The Company agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefore.
35
17. Waiver
of Jury Trial.
The
Company hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial
by
jury in any legal proceeding between the Company and the Underwriters arising
out of or relating to this Agreement or the transactions contemplated
hereby.
18. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together
shall constitute one and the same agreement.
19. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
20. Definitions.
The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration
Statement became or becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
36
“Liquidation”
shall mean the distributions of the Trust Account to the Public Stockholders
if
the Company fails to consummate a Business Combination as more fully described
in the Registration Statement.
“Preliminary
Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(a)
above and any preliminary prospectus included in the Registration Statement
at
the Effective Date that omits Rule 430A Information.
“Prospectus”
shall mean the prospectus relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time.
“Registration
Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement
relating to the Securities and the Representatives’ Securities that is filed
with the Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430A, as amended at the Execution Time and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430A” and “Rule 433” refer to such rules under the Act.
“Rule
430A Information” shall mean information with respect to the Securities and the
Representatives’ Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A.
“Rule
462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the registration statement referred to in Section 1(a)
hereof.
“Statutory
Prospectus” shall mean the Preliminary Prospectus dated ___________, 2008,
relating to the Securities and the Representatives’ Securities that were first
filed as part of Registration Statement with the Commission on ___________,
2008.
37
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the several
Underwriters.
| Very truly yours, | ||
| China Ascendance Acquisition Corporation | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Susquehanna Financial Group, LLLP | |||
| By: | |||
|
Name:
|
|||
|
Title:
|
|||
| Ladenburg Xxxxxxxx & Co. Inc. | |||
| By: | |||
|
Name:
|
|||
|
Title:
|
|||
| For itself and the other several
Underwriters named in Schedule I to the foregoing Agreement. |
38
SCHEDULE
I
|
Underwriters
----------------
|
Number
of Underwritten Securities
to
be Purchased
-------------------
|
|
Susquehanna
Financial Group, LLLP
|
|
| Ladenburg Xxxxxxxx & Co. Inc. | |
|
==========
|
|
|
Total............................
|
10,000,000
|
39
EXHIBIT
A
FORM
OF
TRUST CLAIM WAIVER LETTER
[Letterhead
of prospective vendor or target business.]
[Address]
Ladies
and Gentlemen:
Reference
is made to the Prospectus of China Ascendance Acquisition Corporation (the
“Company”), dated ________, 200_ (the “Prospectus”).
We
acknowledge that we have read the Prospectus and understand that the Company
has
established a Trust Account for the benefit of the Company’s
public stockholders at Xxxxxxx Xxxxx, maintained by Continental Stock Transfer
& Trust Company acting as trustee (the “Trust Account”) and that the Company
may disburse monies from the Trust Account only:
(a) in
the
event the Company consummates a “business combination” (as such term is used in
the Prospectus), to any public stockholders who exercise their conversion
rights, to the Underwriters in respect of their deferred underwriting
discounts
and commissions and to the Company in the amount remaining in the Trust Account
following such payments to the public stockholders and the Underwriters;
or
(b) in
the
event of the Company’s liquidation, to the public stockholders.
For
and
in consideration of the Company [AGREEING TO EVALUATE US FOR PURPOSES OF
CONSUMMATING AN INITIAL BUSINESS COMBINATION] [ENGAGING OUR SERVICES],
we hereby agree that we do not have any right, title, interest or claim of
any
kind in or to any monies in the Trust Account (“Claim”) and hereby waive any
Claim we 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.
| Very truly yours, | ||
| [NAME] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
40
EXHIBIT
B
FORM
OF
LOCK-UP AGREEMENT
[Letterhead
of officer, director or major shareholder of China Ascendance Acquisition
Corporation]
China
Ascendance Acquisition Corporation
Public
Offering of Units
,
2008
Susquehanna
Financial Group, LLLP
Ladenburg
Xxxxxxxx & Co. Inc.
As
Representatives of the several Underwriters,
c/o
Susquehanna Financial Group, LLP.
000
Xxxx
Xxx, Xxxxx 000
Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Ladies
and Gentlemen:
This
Lock-Up Agreement (this “Lock-Up Agreement”) is being delivered to you in
connection with the proposed Underwriting Agreement (the “Underwriting
Agreement”), between China Ascendance Acquisition Corporation, a Cayman Islands
limited life company (the “Company”), and you as representative of a group of
Underwriters named therein, relating to an underwritten public offering of
Units
consisting of one Ordinary
Share and
one
warrant (the “Units”), of the Company.
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned will not, without the prior written
consent of Susquehanna Financial Group, LLLP, and Ladenburg Xxxxxxxx & Co.
Inc. (i) offer, sell, contract to sell, pledge, hypothecate, grant any option
to
purchase or otherwise dispose of or transfer or enter into any transaction
which
is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the undersigned or any affiliate of the undersigned
or any person in privity with the undersigned or any affiliate of the
undersigned), directly or indirectly, including the filing (or participation
in
the filing) of a registration statement with the Commission in respect of,
or
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Exchange Act with
respect to, any other Units, Ordinary
Shares,
Warrants or any securities convertible into, or exercisable, or exchangeable
for, Ordinary
Shares
or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of the Units,
Ordinary
Shares
or
Warrants, Ordinary
Shares
issuable
upon exercise of the Warrants or any securities convertible into or exercisable
or exchangeable for Ordinary
Shares
or
Warrants or other rights to purchase Ordinary
Shares
or any
such securities, whether any such transaction is to be settled by delivery
of
Ordinary
Shares
or such
other securities, in cash or otherwise; or publicly announce an intention to
effect any such transaction in (i) or (ii), during the period commencing on
the
date hereof and ending 180 days after the date hereof, other than Ordinary
Shares
disposed
of as bona fide gifts approved in writing and in advance by Susquehanna
Financial Group, LLLP and Ladenburg Xxxxxxxx & Co. Inc.
41
If
(i)
during the last 17 days of the 180-day restricted period, the Company issues
an
earnings release or material news, or a material event
relating to the Company occurs, or (ii) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day restricted
period, then the foregoing restrictions imposed by this Lock-Up Agreement shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event, unless Susquehanna Financial Group, LLLP and Ladenburg Xxxxxxxx
& Co. Inc. waive, in writing, such extension. The undersigned hereby
acknowledges that the Company has agreed in the Underwriting Agreement to
provide written notice of any event that would result in an extension of the
180-day restricted period and agrees that any such notice properly delivered
will be deemed to have been given to, and received by, the
undersigned.
If
for
any reason the Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
| Yours very truly, | |||
|
[SIGNATURE
OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER]
|
|||
|
[NAME
AND ADDRESS OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
|
|||
42
