FORM OF UNDERWRITING AGREEMENT] GLOBAL LOGISTICS ACQUISITION CORPORATION UNDERWRITING AGREEMENT
Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT]
BB&T CAPITAL MARKETS, a Division of Xxxxx & Xxxxxxxxxxxx, Inc.
As Representative of the Several Underwriters
As Representative of the Several Underwriters
BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
[____________], 2005
Ladies and Gentlemen:
The undersigned, Global Logistics Acquisition Corporation, a Delaware corporation (“Company”),
hereby confirms its agreement with BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx, Inc.
(being referred to herein variously as “you,” “BBTCM” or the “Representative”) and with the other
underwriters named on Schedule I hereto for which BBTCM is acting as Representative (the
Representative and the other Underwriters being collectively called the “Underwriters” or,
individually, an “Underwriter”) as follows:
1. Purchase and Sale of Securities.
1.1 Firm Securities.
1.1.1 Purchase of Firm Units. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell, severally and not jointly, to the several Underwriters, an
aggregate of 10,000,000 units (the “Firm Units”) of the Company, at a purchase price (net of
discounts and commissions) of $7.50 per Firm Unit. The Underwriters, severally and not
jointly, agree to purchase from the Company the number of Firm Units set forth opposite their
respective names on Schedule I hereto and made a part hereof at a purchase price (net of
discounts and commissions) of $7.50 per Firm Unit. The Firm Units are to be offered initially
to the public (the “Offering”) at the offering price of $8.00 per Firm Unit. Each Firm Unit
consists of one share of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and one warrant (the “Warrant”). The shares of Common Stock and the Warrants included
in the Firm Units will not be separately transferable until
20 days after the earlier of the expiration of the Underwriters’ Over-allotment Option
(as defined in Section 1.2.1 herein) and the exercise in full by the Underwriters of such
Over-allotment Option, but in no event will the Representative allow separate trading until an
audited balance sheet of the Company reflecting receipt by the Company of the proceeds of the
Offering has been prepared and filed with a Current Report on Form 8-K with the Securities and
Exchange Commission (the “Commission”). Each Warrant entitles its holder to exercise it to
purchase one share of Common Stock for $6.00 during the period commencing on the later of the
consummation by the Company of its “Business Combination” (as defined below) or one year from
the Effective Date of the Registration Statement and terminating on the five-year anniversary
of the Effective Date. “Business Combination” shall mean the acquisition by the Company,
whether by merger, capital stock exchange, asset acquisition or other similar type of business
combination, of one or more operating businesses in the transportation and logistics sector
and related industries having, collectively, a fair market value (as calculated in accordance
with the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of
Incorporation”)) of at least 80% of the Company’s net assets at the time of such acquisition;
provided, however, that any acquisition of multiple businesses shall occur
contemporaneously with one another.
1.1.2 Payment and Delivery. Delivery and payment for the Firm Units shall be
made at 10:00 A.M., New York time, on the third business day following the effective date of
the Registration Statement (or the fourth business day following the effective date, if the
Registration Statement is declared effective after 4:30 p.m.) or at such earlier time as shall
be agreed upon by the Representative and the Company at the offices of the Representative or
at such other place as shall be agreed upon by the Representative and the Company. The hour
and date of delivery and payment for the Firm Units are called, collectively, the “Closing
Date.” Payment for the Firm Units shall be made on the Closing Date at the Representative’s
election by wire transfer in Federal (same day) funds or by certified or bank cashier’s
check(s) in New York Clearing House funds, payable as follows: the gross proceeds received for
the Firm Units sold in the Offering, less 6.25% of such proceeds attributable to the
Underwriters’ discounts and commissions as described herein, shall be deposited in the trust
fund established by the Company for the benefit of the public stockholders as described in the
Registration Statement (the “Trust Fund”) pursuant to the terms of an Investment Management
Trust Agreement (the “Trust Agreement”). The Firm Units shall be registered in such name or
names and in such authorized denominations as the Representative may request in writing, such
request to be made at least two business days prior to the Closing Date. The Company will
permit the Representative to examine and package the Firm Units for delivery, at least two
business days prior to the Closing Date. The Company shall not be obligated to sell or deliver
the Firm Units except upon tender of payment by the Representative for all the Firm Units.
1.2 Over-Allotment Option.
1.2.1 Option Units. For the purposes of covering any over-allotments in
connection with the distribution and sale of the Firm Units, the Underwriters are hereby
granted, severally and not jointly, an option to purchase, collectively, up to an additional
1,500,000 units from the Company (the “Over-allotment
Option”). Such additional 1,500,000
units
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are hereinafter referred to as the “Option Units.” The Firm Units and the Option Units
are hereinafter collectively referred to as the “Units.” The purchase price to be paid for the
Option Units will be the same price per Option Unit as the price per Firm Unit set forth in
Section 1.1.1 hereof. In the event and to the extent that the Underwriters shall exercise the
Over-allotment Option, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Company that
portion of the number of Option Units as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined by multiplying such number
of Optional Units by a fraction, the numerator of which is the maximum number of Firm Units
which such Underwriter is obligated to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto, and the denominator of which is the maximum number of Firm
Units that all of the Underwriters are obligated to purchase hereunder. The Units, the shares
of Common Stock and the Warrants included in the Units and the shares of Common Stock issuable
upon exercise of the Warrants are hereinafter referred to collectively as the “Public
Securities.”
1.2.2 Exercise of Option. The Over-allotment Option granted pursuant to
Section 1.2.1 hereof may be exercised in whole or in part by the Representative at any time
within 45 days after the Effective Date. The Underwriters will not be under any obligation to
purchase any Option Units prior to the exercise of the Over-allotment Option. The
Over-allotment Option granted hereby may be exercised by the giving of oral notice to the
Company by the Representative, which must be confirmed in writing by overnight mail or
facsimile transmission setting forth the aggregate number of Option Units to be purchased and
the date and time for delivery of and payment for the Option Units (the “Option Closing
Date”), which will not be later than ten business days after the date of the notice, unless
another time shall be agreed upon by the Company and the Representative in writing, at the
offices of the Representative or at such other place as shall be agreed upon by the Company
and the Representative in writing. Upon exercise of the Over-allotment Option, the Company
will become obligated to convey to the Underwriters, and, subject to the terms and conditions
set forth herein, the Underwriters will become obligated to purchase, the number of Option
Units specified in such notice.
1.2.3 Payment and Delivery. Payment for the Option Units shall be made on the
Option Closing Date at the Representative’s election by wire transfer in Federal (same day)
funds or by certified or bank cashier’s check(s) in New York Clearing House funds, payable to
the Trust Fund at the offices of the Representative or at such other place as shall be agreed
upon by the Representative and the Company, in writing, upon delivery to you of certificates
representing such securities (or through the facilities of the DTC) for the account of the
Underwriters. The certificates representing the Option Units to be delivered will be in such
denominations and registered in such names as the Representative requests not less than two
business days prior to the Closing Date or the Option Closing Date, as the case may be, and
will be made available to the Representative for inspection, checking and packaging at the
aforesaid office of the Company’s transfer agent or correspondent not less than two business
days prior to such Closing Date.
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2. Representations and Warranties of the Company. The Company represents and warrants to
the Underwriters as follows:
2.1 Filing of Registration Statement.
2.1.1 Pursuant to the Act. The Company has filed with the Commission a
registration statement, on Form S-1 (File No. 333-128591), as may be amended from time to time
(the “Initial Registration Statement”), including any related preliminary prospectus included
in the Initial Registration Statement or filed pursuant to Rule 424(a) of the Securities Act
of 1933, as amended (the “Act”)
(“Preliminary Prospectus”), for the registration of the Public
Securities under the Act. Except as the context may otherwise require, such Initial
Registration Statement, as amended and on file with the Commission at the time such Initial
Registration Statement becomes effective (including the prospectus, financial statements,
schedules, exhibits and all other documents filed as a part thereof or incorporated therein,
all information deemed to be a part thereof as of such time pursuant to Rule 430A of the
Regulations (as defined below)), and any registration statement filed to increase the size of
the Offering pursuant to Rule 462(b) of the Regulations (a “Rule 462(b) Registration
Statement”), are hereinafter called the “Registration Statement,” and the form of the final
prospectus dated the Effective Date included in the Registration Statement (or, if applicable,
the form of final prospectus filed with the Commission pursuant to Rule 424(b) of the
Regulations), is hereinafter called the “Prospectus.” The Initial Registration Statement has
been declared effective by the Commission on the date hereof.
2.1.2 Pursuant to the Exchange Act. The Company has filed with the Commission
a Form 8-A (File Number 000-___) providing for the registration under the Securities
Exchange Act of 1934, as amended (“Exchange Act”), of the Public Securities. The registration
of the Public Securities under the Exchange Act has been declared effective by the Commission
on the date hereof.
2.2 No Stop Orders, Etc. Neither the Commission nor, to the best of the Company’s
knowledge, any state regulatory authority has issued any order preventing or suspending the use of
any Preliminary Prospectus or has instituted or, to the best of the Company’s knowledge, threatened
to institute any proceedings with respect to such an order. Neither the Commission nor, to the best
of the Company’s knowledge, any state regulatory authority has issued any order suspending the
effectiveness of the Registration Statement or has instituted or, to the best of the Company’s
knowledge, threatened to institute any proceedings with respect to such an order.
2.3 Disclosures in Registration Statement.
2.3.1 10b-5 Representation. Subject to the last sentence of this Section 2.3.1.,
(i) the Registration Statement and any further amendment thereto do not and will not, as of
the applicable effective date as to the Registration Statement and any amendment thereto,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus
and any further amendment or supplement thereto do not and will not, as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue
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statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (iii) each Preliminary Prospectus, at the time of filing
thereof, did not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The representation and warranty
made in this Section 2.3.1 does not apply to statements made or statements omitted in reliance
upon and in conformity with written information furnished to the Company with respect to the
Underwriters by the Representative expressly for use in the Registration Statement or
Prospectus or any amendment thereof or supplement thereto (it being understood and agreed that
the only such information is that described as such in Section 5.4 hereof).
2.3.2 Compliance with the Act. The Registration Statement conforms and the
Prospectus and any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects, with the requirements of the Act and the
rules and regulations of the Commission thereunder (the
“Regulations”). Each Preliminary
Prospectus, at the time of filing thereof, conformed, in all material respects, with the
requirements of the Act and the Regulations.
2.3.3 Disclosure of Agreements. The agreements and documents described in the
Registration Statement and the Prospectus conform to the descriptions thereof contained
therein and there are no agreements or other documents required to be described in the
Registration Statement or the Prospectus or to be filed with the Commission as exhibits to the
Registration Statement, that have not been so described or filed.
Each agreement filed as an exhibit to the Registration Statement to
which the Company is currently a party has been duly and validly executed
by the Company, is in full force and effect and is enforceable against the Company in accordance
with its terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws affecting creditors’ rights generally, (ii) as such
enforceability may be limited by an implied covenant of good faith and fair dealing, (iii) as
enforceability of any indemnification or contribution provision may be limited under the
federal and state securities laws or principles of public policy, (iv) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any proceeding therefor may
be brought and (v) as such enforceability may be limited by general principles of equity
(regardless of whether enforceability is considered in a proceeding
in equity or at law). and none of such agreements has been
assigned by the Company, and the Company is not in breach or default
thereunder and, to the best of the Company’s
knowledge, no event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a breach or default by the Company thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements will
not result in a material violation of any existing applicable law, rule, regulation, judgment,
order or decree of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its assets or businesses, including, without limitation, those
relating to environmental laws and regulations.
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2.3.4 Description of Public Securities. The description of the Public
Securities contained in the Prospectus under the caption “Description of Securities,” insofar
as such description constitutes a summary of the material terms of such Public Securities
referred to therein, is accurate and fairly presents the matters referred to therein, in each
case, in all material respects.
2.3.5 Prior Securities Transactions. No securities of the Company have been
sold by the Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company since the formation of
the Company, except as disclosed in the Prospectus.
2.3.6 Rule 419. The description of Rule 419 of the Regulations contained in
the Prospectus under the caption “Proposed Business—Comparisons to offerings of blank check
companies,” in so far as such description constitutes a summary of the legal matters referred
to therein, is accurate, and fairly presents the matters referred to therein, in each case, in
all material respects.
2.4 Changes After Dates in Registration Statement.
2.4.1 No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as otherwise
specifically stated therein, (i) there has been no material adverse change in the condition,
financial or otherwise, business, operations or prospects of the Company (“Material Adverse
Change”), (ii) there have been no material transactions entered into by the Company, other
than as contemplated pursuant to this Agreement and (iii) no member of the Company’s
management has resigned from any position with the Company.
2.4.2 Recent Securities Transactions, Etc. Subsequent to the respective dates
as of which information is given in the Registration Statement and the Prospectus, and except
as may otherwise be indicated or contemplated herein or therein, the Company has not (i)
issued any securities or incurred any liability or obligation, direct or contingent, for
borrowed money, or (ii) declared or paid any dividend or made any other distribution on or in
respect to its equity securities.
2.5 Independent Accountants. To the best of the Company’s knowledge, Xxxxxx LLP
(“Xxxxxx”), whose report is filed with the Commission as part of the Registration Statement, are
independent accountants as required by the Act and the Regulations. Xxxxxx has not, during the
periods covered by the financial statements included in the Prospectus, provided to the Company any
non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.6 Financial Statements. The financial statements, including the notes thereto and
supporting schedules included in the Prospectus, fairly present the financial position, the results
of operations and the cash flows of the Company at the dates and for the period to which they
apply; such financial statements have been prepared in conformity with United States generally
accepted accounting principles (“GAAP”), consistently applied throughout the period involved;
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and the supporting schedules included in the Registration Statement present fairly the
information required to be stated therein.
2.7 Due Incorporation; Good Standing. The Company has been duly organized and is
validly existing as a corporation and is in good standing under the laws of its state of
incorporation, and is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of property or the conduct of
business requires such qualification, except where the failure to qualify would not result in a
material adverse effect on the Company’s condition, financial or otherwise, business, operations or
prospects (“Material Adverse Effect”).
2.8 Authorized Capital; Outstanding Capital Stock.
2.8.1 The Company had at the date or dates indicated in the Prospectus duly authorized, issued
and outstanding capitalization as set forth in the Registration Statement and the Prospectus. Based
on the assumptions stated in the Registration Statement and the Prospectus, the Company will have
on the Closing Date the adjusted stock capitalization set forth therein. Except as set forth in, or
contemplated by, the Registration Statement and the Prospectus, on the Effective Date and on the
Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire
any authorized but unissued shares of Common Stock of the Company or any security convertible into
shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares of
Common Stock or any such options, warrants, rights or convertible securities.
2.8.2 All issued and outstanding securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof have no rights of
rescission with respect thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive rights of any
holders of any security of the Company or similar contractual rights granted by the Company. The
authorized Common Stock conforms to all statements relating thereto contained in the Registration
Statement and the Prospectus. The offers and sales of the outstanding Common Stock were at all
relevant times either registered under the Act and the applicable state securities or Blue Sky laws
or, based in part on the representations and warranties of the purchasers of such shares of Common
Stock, exempt from such registration requirements.
2.9 Registration Rights of Third Parties. Except as set forth in 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.
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2.10 Issuance of Public Securities. The Public Securities have been duly authorized
and, when issued and paid for, will be validly issued, fully paid and non-assessable. The issuance
of the Public Securities will not be subject to any preemptive or similar contractual rights
granted by the Company. When issued, the Warrants will constitute valid and binding obligations of
the Company to issue and sell, upon exercise thereof and payment of the respective exercise prices
therefor, the number and type of securities of the Company called for thereby in accordance with
the terms thereof and such Warrants will be enforceable against the Company in accordance with
their respective terms, except (i) as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or similar laws affecting creditors’ rights
generally, (ii) as such enforceability may be limited by an implied covenant of good faith and fair
dealing, (iii) as enforceability of any indemnification or contribution provision may be limited
under the federal and state securities laws or principles of public policy, (iv) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor may be brought and
(v) as such enforceability may be limited by general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.11 Due Authorization; Validity and Binding Effect of Agreements.
2.11.1 Due Authorization. This Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties hereto, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws affecting creditors’ rights generally, (ii) as such
enforceability may be limited by an implied covenant of good faith and fair dealing, (iii) as
enforceability of any indemnification or contribution provision may be limited under the
federal and state securities laws or principles of public policy, (iv) that the remedy of
specific performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any proceeding therefor may
be brought and (v) as such enforceability may be limited by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law).
2.11.2 Other Agreements. The Warrant Agreement and the Trust Agreement have
been duly authorized by the Company and, when executed and delivered
by each party thereto, will constitute the
valid and binding obligations of the Company, enforceable against the Company in accordance
with their respective terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or similar laws affecting
creditors’ rights generally, (ii) as such enforceability may be limited by an implied covenant
of good faith and fair dealing, (iii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws or principles of public
policy, (iv) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (v) as such
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enforceability may be limited by general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.12 No Conflicts, Etc. The execution, delivery, and performance by the Company of
this Agreement, the Warrant Agreement and the Trust Agreement, the consummation by the Company of
the transactions contemplated herein, therein and in the Prospectus (including the issuance and
sale of the Public Securities and the use of proceeds from such sale as described in the
Prospectus) and the compliance by the Company with the terms hereof and thereof do not and will
not, (i) result in a breach of, or conflict with any of the terms and provisions of, or constitute
a default, with or without the giving of notice or the lapse of time or both, under, or result in
the creation, modification, termination or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any agreement or instrument to which the
Company is a party except pursuant to the Trust Agreement, (ii) result in any violation of the
provisions of the Certificate of Incorporation or the Bylaws of the Company, or (iii) violate any
existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or
court having jurisdiction over the Company or any of its properties or business.
2.13 No Consents. No consent, authorization or order of, and no filing with, any
court, government agency or other government body is required for the issuance and sale of the
Public Securities and the consummation of the transactions and agreements contemplated by this
Agreement, the Warrant Agreement and the Trust Agreement and as contemplated by the Prospectus,
except with respect to applicable federal and state securities laws.
2.14 No Defaults; Violations. No material default exists in the due performance and
observance of any term, covenant or condition of any material license, contract, indenture,
mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or instrument to which
the Company is a party or by which the Company may be bound or to which any of the properties or
assets of the Company is subject. The Company is not (i) in violation of any term or provision of
its Certificate of Incorporation or Bylaws or (ii) in violation of any franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic
or foreign, having jurisdiction over the Company or any of its properties or businesses, which in
the case of this clause (ii) would result in a Material Adverse Effect.
2.15 Ownership. Except as set forth in the Prospectus, the Company owns no real
property, has no leasehold interests in any real property, and has no personal property that is, in
each case, material to the operations, financial condition or business of the Company.
2.16 Litigation; Governmental Proceedings. There is no action, suit, proceeding,
inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the best
of the Company’s knowledge, threatened against the Company which has not otherwise been disclosed
in the Prospectus and which would result in, if determined aversely to the Company, a Material
Adverse Effect. Except as disclosed in the Prospectus, to the best of the Company’s knowledge,
there are no third party claims against the Trust Fund.
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2.17 Transactions Affecting Disclosure to NASD.
2.17.1 Finder’s Fees. Except as described in the Prospectus, there are no claims,
payments, arrangements, agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a brokerage commission,
finder’s fee or other payment in connection with the Offering.
2.17.2 Payments Within Twelve Months. The Company has not made any direct or indirect
payments (in cash, securities or otherwise) (i) to 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 member of the National
Association of Securities Dealers, Inc. (“NASD”) or (iii) to any person or entity that has any
direct or indirect affiliation or association with any NASD member, within the twelve months prior
to the Effective Date, other than payments to BBTCM, in each case, other than as disclosed in the
Prospectus.
2.17.3 Use of Proceeds. None of the net proceeds of the Offering will be paid by the
Company to any participating NASD member or its affiliates, except as specifically authorized
herein and except as may be paid in connection with a Business Combination as contemplated by the
Prospectus.
2.17.4
Insiders’ NASD Affiliation. Based on the response
provided to the questionnaires distributed to such
persons, except as set forth on Schedule 2.17.4, no officer, director or any beneficial
owner of the Company’s unregistered securities has any direct or indirect affiliation or
association with any NASD member.
2.18 Covenants Not to Compete. No employee, officer or director of the Company is
subject to any noncompetition agreement or non-solicitation agreement with any employer or prior
employer which could materially adversely affect his ability to be an employee, officer and/or
director of the Company.
2.19 Investments. The Company is not and, after giving effect to the offering and
sale of the Units, will not be an “investment company”, as such term if defined in the Investment
Company Act of 1940, as amended (the “Investment Company
Act”).
2.20 Subsidiaries. The Company does not own an interest in any corporation,
partnership, limited liability company, joint venture, trust or other business entity
2.21 Related Party Transactions. Other than as disclosed in the Prospectus, there
are no business relationships or related party transactions involving the Company or any other
person required to be described in the Prospectus.
2.22 Operations. Prior to the Offering, the Company has had no operations other
than organizational activities and other activities relating to the Offering.
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3. Covenants of the Company. The Company covenants and agrees as follows:
3.1 Amendments to Registration Statement. The Company will deliver to the
Representative, prior to filing, any amendment or supplement to the Registration Statement or
Prospectus proposed to be filed after the Effective Date and not file any such amendment or
supplement to which the Representative shall reasonably object in writing.
3.2 Federal Securities Laws.
3.2.1 Compliance. If at any time when a Prospectus relating to the Public
Securities is required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, it shall otherwise be necessary during such
period to amend or supplement the Prospectus in order to comply with the Act, to notify the
Representative promptly and prepare and file with the Commission, subject to Section 3.1
hereof, an appropriate amendment or supplement in accordance with Section 10 of the Act.
3.2.2 Filing of Final Prospectus. The Company will file the Prospectus (in
form and substance reasonably satisfactory to the Representative) with the Commission pursuant
to the requirements of Rule 424 of the Regulations. If the Company elects to rely on Rule
462(b) of the Regulations, the Company shall file a Rule 462(b) Registration Statement by
10:00 P.M., New York time, on the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) of the
Regulations.
3.3 Blue Sky Filings. The Company will endeavor in good faith, in cooperation with
the Representative, at or prior to the time the Registration Statement becomes effective, to
qualify the Public Securities for offering and sale under the securities laws of such jurisdictions
as the Representative may reasonably designate, to the extent the Public Securities are not
otherwise exempt from such state securities laws, provided that no such qualification shall be
required in any jurisdiction where, as a result thereof, the Company would be subject to service of
general process or to taxation as a foreign corporation doing business in such jurisdiction. Until
the earliest of (i) the date on which all Underwriters shall have ceased to engage in market making
activities in respect of the Public Securities, (ii) the date on which the Public Securities become
“covered securities” under Section 18 of the Act, and (iii) the date of the liquidation of the
Company (the period from the Effective Date to such earliest date, the “Blue Sky Compliance
Period”), in each jurisdiction where such qualification shall be effected, the Company will, unless
the Representative agrees that such action is not at the time necessary or advisable, use all
reasonable efforts to file and make such statements or reports at such times as are or may be
required by the laws of such jurisdiction to permit the continuation of sales or dealings in the
Public Securities.
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3.4 Delivery to Underwriters of Prospectuses. The Company will deliver to each of
the several Underwriters, without charge, from time to time during the period when the Prospectus
is required to be delivered under the Act, such number of copies of each Preliminary Prospectus and
the Prospectus as such Underwriters may reasonably request and, as soon as the Registration
Statement or any amendment or supplement thereto becomes effective, deliver to you one original
executed Registration Statement, including exhibits, and all post-effective amendments thereto and
copies of all exhibits filed therewith or incorporated therein by reference and all original
executed consents of certified experts.
3.5 Effectiveness and Events Requiring Notice to the Representative. The Company
will use its reasonable best efforts to cause the Registration Statement to remain effective until
distribution of the Public Securities is complete and will notify, in writing, the Representative
promptly after it receives notice thereof (i) of the effectiveness of the Registration Statement
and any amendment thereto, (ii) of the issuance by the Commission of any stop order or of the
initiation, or the threatening, of any proceeding for that purpose, (iii) of the suspension of the
qualification of the Public Securities for offering or sale in any jurisdiction or of the
initiation, or the threatening, of any proceeding for that purpose, (iv) of the mailing and
delivery to the Commission for filing of any amendment or supplement to the Registration Statement
or Prospectus, (v) of the receipt of any comments or request for any additional information from
the Commission, and (vi) of the happening of any event described in Section 3.2.1 hereof. If the
Commission or any state securities commission shall enter a stop order or suspend such
qualification at any time, the Company will use its reasonable best efforts to obtain promptly the
lifting of such order.
3.6 Secondary Market Trading and Standard & Poor’s. During the Blue Sky Compliance
Period, (i) the Company will apply to be included in Standard & Poor’s Daily News and Corporation
Records Corporate Descriptions until the expiration of the Blue Sky Compliance Period, or if
earlier, until five years from the consummation of a Business Combination; (ii) promptly after the
consummation of the Offering, the Company shall take such steps as may be reasonably necessary to
obtain a secondary market trading exemption for the Company’s securities in the State of
California; and (iii) the Company shall also take such other action as may be reasonably requested
by the Representative to obtain a secondary market trading exemption in such other states as may be
requested by the Representative.
3.7 Reports to the Representative.
3.7.1 Periodic Reports, Etc. To the extent not otherwise available via the
internet or other electronic medium, during a period of five years from the Effective Date,
the Company shall furnish the Representative copies of all reports or other communications
(financial or other) furnished to the holders of the Public Securities, and to deliver to you
(i) as soon as they are available, copies of any reports and financial statements furnished to
or filed with the Commission; and (ii) such additional information concerning the business and
financial condition of the Company as the Representative may from time to time reasonably
request.
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3.7.2 Transfer Sheets. During the Blue Sky Compliance Period, the Company
shall retain a transfer and warrant agent reasonably acceptable to the Representative
(“Transfer Agent”) and will furnish to the Underwriters at the Company’s sole cost and expense
such transfer sheets of the Company’s securities as the Representative may reasonably request,
including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC.
The Underwriters acknowledge that The Bank of New York is an acceptable Transfer Agent.
3.8 General Expenses Related to the Offering. The Company hereby agrees to pay all
expenses incident to the performance of the obligations of the Company under this Agreement,
including but not limited to (i) the printing, filing and mailing (including the payment of postage
with respect to such mailing) of the Registration Statement, the Preliminary and Final Prospectuses
and the printing and mailing of this Agreement and related documents, including the cost of all
copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in
quantities as may be required by the Underwriters, (ii) the printing, engraving, issuance and
delivery of the Public Securities, including any transfer or other taxes payable thereon, (iii) the
qualification of the Public Securities under state or foreign securities or Blue Sky laws,
including the costs of preparing, printing and mailing the “Preliminary Blue Sky Memorandum,” and
all amendments and supplements thereto, the preparation of the Secondary Market Trading Survey (as
defined below), and the reasonable fees and disbursements of Xxxxxxxxx Xxxxxxx, LLP (“GT”) related
thereto; provided that the Company shall not be required to reimburse the Representative or GT for
any amounts under this clause (iii) in excess of $___________, (iv) filing fees, costs and expenses
(excluding fees and disbursements for the Representative’s counsel) incurred in registering the
Offering with the NASD and the Commission, (v) fees and disbursements of the transfer and warrant
agent, and (vi) all other costs and expenses incident to the performance of the Company’s
obligations hereunder which are not otherwise specifically provided for in this Section 3.8.
3.9 Notice to NASD. For a period of ninety days following the Effective Date, in
the event any person or entity (excluding attorneys, accountants, engineers, environmental or labor
consultants, investigatory firms, technology consultants and specialists and similar service
providers that are not affiliated or associated with the NASD and are not brokers or finders) is
engaged, in writing, to assist the Company in finding or evaluating a merger candidate in respect
of the Business Combination, the Company shall provide to the Representative and the NASD prior to
consummation of the transaction: (i) copies of agreements governing said services (which details or
agreements may be appropriately redacted to account for privilege or confidentiality concerns);
(ii) a justification as to why the person or entity providing the merger and acquisition services
should not be considered an “underwriter or related person”, as defined in Rule 2710(a)(6) of the
NASD Conduct Rules, and (iii) proper disclosure of such arrangement in the Registration Statement
if required by applicable law and the compensation paid in connection with such arrangement is
deemed by the NASD to be underwriter compensation that is paid or to be paid in respect of the
public offering.
3.10 Delivery of Earnings Statements to Security Holders. The Company will make
generally available to its security holders as soon as practicable, but not later than the first
day of
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the eighteenth full calendar month following the Effective Date, an earnings statement (which
need not be certified by independent public or independent certified public accountants unless
required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Act) covering a period of at least twelve consecutive months beginning after
the Effective Date.
3.11 [Intentionally omitted]
3.12 Stabilization. Except with respect to the transactions contemplated by
agreements between the Representative and the Initial Stockholders (the “Warrant Purchase
Commitment Agreement”), the Company will not, and will use its best efforts to cause its employees,
directors or stockholders not to, take, directly or indirectly, any action designed to or that has
constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Public Securities, in any case, that is in violation of the Exchange Act.
3.13 Form 8-K. The Company shall, on the date hereof, retain its independent public
accountants to audit the financial statements of the Company as of the Closing Date (“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
file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s
Audited Financial Statements.
3.14 NASD. During the period of the distribution of the Public Securities, the
Company shall advise the NASD if it is aware that any 5% or greater stockholder of the Company
becomes an affiliate or associated person of an NASD member participating in the distribution of
the Company’s Public Securities.
3.15 Use of Proceeds. The Company shall apply the net proceeds from the sale of the
Public Securities in accordance with the statements made under the caption “Use of Proceeds.”
3.16 Company Lock-Up. The Company shall not issue any securities or incur any debt
except in connection with a Business Combination. The Company hereby agrees that until the earlier
of the consummation of a Business Combination or the distribution of the Trust Fund, it shall not
issue any shares of Common Stock or any options or other securities convertible into Common Stock,
or any shares of Preferred Stock that participate in any manner in the Trust Fund or vote as a
class with the Common Stock on a Business Combination as contemplated in the Prospectus.
3.17 No amendment to Organizational Documents. The Company shall not amend or
otherwise modify its Certificate of Incorporation, Bylaws or board committee charters prior to the
Closing.
4. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters
to purchase and pay for the Units, as provided herein, shall be subject to the continuing accuracy
of the representations and warranties of the Company as of the date hereof and as of each of the
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Closing Date and the Option Closing Date, if any, to the accuracy of the statements of officers of
the Company made pursuant to the provisions hereof and to the performance by the Company of its
obligations hereunder and to the following conditions:
4.1 Regulatory Matters.
4.1.1 Effectiveness of Registration Statement. The Registration Statement
shall have become effective not later than 5:00 P.M., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by you, and, at each
of the Closing Date and the Option Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for the purpose shall
have been instituted or shall be pending or contemplated by the Commission and any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representative.
4.1.2 No Blue Sky Stop Orders. No order suspending the sale of the Units in
any jurisdiction designated by you pursuant to Section 3.3 hereof shall have been issued on
either on the Closing Date or the Option Closing Date, and no proceedings for that purpose
shall have been instituted.
4.2 Company Counsel Matters.
4.2.1 Closing Date Opinion of Counsel. On each of the Closing Date and the
Option Closing Date, if any, the Representative shall have received the favorable opinion of
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP (“SAB”), counsel to the Company, dated as of the Closing Date
or the Option Closing Date, as the case may be, addressed to the Representative and
substantially in the form attached hereto as Exhibit A.
4.2.2 Reliance. In rendering such opinion, such counsel may rely (i) as to
matters involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to the Representative) of other counsel reasonably
acceptable to the Representative, familiar with the applicable laws, and (ii) as to matters of
fact, to the extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company, provided that
copies of any such statements or certificates shall be delivered to the Representative if
requested.
4.3 Cold Comfort Letter. At the time this Agreement is executed, and at each of the
Closing Date and the Option Closing Date, if any, you shall have received a letter, addressed to
the Representative and in form and substance satisfactory in all respects (including the
non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to you
and to GT from Xxxxxx dated, respectively, as of the date of this Agreement and as of the Closing
Date and the Option Closing Date, if any:
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(i) Confirming that they are independent accountants with respect to the Company
within the meaning of the Act and the applicable Regulations and that they have not, during
the periods covered by the financial statements included in the Prospectus, provided to the
Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included in
the Registration Statement and Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the published Regulations thereunder;
(iii) Stating that, on the basis of a limited review which included a reading of the
latest available minutes of the stockholders and board of directors and the various committees
of the board of directors, consultations with officers and other employees of the Company
responsible for financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that (a) the financial
statements of the Company included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of the Act and the
Regulations or are not fairly presented in conformity with generally accepted accounting
principles, (b) at a date not later than five days prior to the Effective Date, Closing Date
or Option Closing Date, as the case may be, there was any change in the capital stock or
long-term debt of the Company, or any decrease in the stockholders’ equity of the Company as
compared with amounts shown in the ____________, 2005 balance sheet included in the Registration
Statement, other than as set forth in or contemplated by the Registration Statement, or, if
there was any decrease, setting forth the amount of such decrease, and (c) during the period
from ____________, 2005 to a specified date not later than five days prior to the Effective
Date, Closing Date or Option Closing Date, as the case may be, there was any decrease in
revenues, net earnings or net earnings per share of Common Stock, in each case as compared
with the corresponding period in the preceding year and as compared with the corresponding
period in the preceding quarter, other than as set forth in or contemplated by the
Registration Statement, or, if there was any such decrease, setting forth the amount of such
decrease;
(iv) Setting forth, at a date not later than five days prior to the Effective Date,
the amount of liabilities of the Company (including a break-down of commercial papers and
notes payable to banks);
(v) Stating that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, statements and other financial information pertaining to
the Company set forth in the Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the general accounting records,
including work sheets, of the Company and excluding any questions requiring an interpretation
by legal counsel, with the results obtained from the application of specified readings,
inquiries and other appropriate procedures (which procedures do not
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constitute an examination in accordance with generally accepted auditing standards) set
forth in the letter and found them to be in agreement;
(vi) Stating that they have not since the organization of the Company brought to the
attention of the Company’s management any reportable condition related to internal structure,
design or operation as defined in the Statement on Auditing Standards No. 60 “Communication of
Internal Control Structure Related Matters Noted in an Audit,” in the Company’s internal
controls; and
(vii) Statements as to such other matters incident to the transaction contemplated
hereby as you may reasonably request.
4.4 Officers’ Certificates.
4.4.1 Officers’ Certificate. At each of the Closing Date and the Option
Closing Date, if any, (i) the Company shall have performed, in all material respects, all
covenants and complied with all conditions required by this Agreement to be performed or
complied with by the Company prior to and as of the Closing Date, or the Option Closing Date,
as the case may be, (ii) the conditions set forth in Section 4.5 hereof shall not have
occurred as of such date, (iii) as of Closing Date and the Option Closing Date, as the case
may be, the representations and warranties of the Company set forth in Section 2 hereof shall
be true and correct in all material respects (except for such representations and warranties
that are qualified by materiality, in which case such representations and warranties shall be
true and correct in all respects) and (iv) the Representative shall have received a
certificate of the Company signed by the Chief Executive Officer and the President of the
Company, dated the Closing Date or the Option Closing Date, as the case may be, to such
effect. In addition, the Representative will have received such other and further certificates
of officers of the Company as the Representative may reasonably request.
4.4.2 Secretary’s Certificate. At each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of the Company
signed by the Secretary or Assistant Secretary of the Company, dated the Closing Date or the
Option Date, as the case may be, respectively, certifying (i) that the Bylaws and Certificate
of Incorporation of the Company are true and complete, have not been modified and are in full
force and effect, (ii) that the resolutions relating to the public offering contemplated by
this Agreement are in full force and effect and have not been modified, (iii) all
correspondence between the Company or its counsel and the Commission, and (iv) as to the
incumbency of the officers of the Company. The documents referred to in such certificate shall
be attached to such certificate.
4.5 No Material Changes. Prior to and on each of the Closing Date and the Option
Closing Date, if any, (i) since the respective dates as of which information is given in the
Prospectus, except as otherwise specifically contemplated therein, (a) there has been no Material
Adverse Change, (b) there have been no material transactions entered into by the Company, other
than as contemplated pursuant to this Agreement, and (c) no member of the Company’s management has
resigned from any position with the Company, and (ii) no action suit or
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proceeding, at law or in equity, shall have been pending or threatened against the Company
before or by any court or federal or state commission, board or other administrative agency wherein
an unfavorable decision, ruling or finding may reasonably be expected to result in a Material
Adverse Effect, except as set forth in the Prospectus.
4.6 Delivery of Agreements.
4.6.1 Closing Date Deliveries by the Company. On the Closing Date, the Company
shall have delivered to the Representative executed copies of the following agreements:
(a) Trust Agreement. The Trust Agreement substantially in the form filed
with the Registration Statement as Exhibit 10.5; and
(b) Warrant Agreement. A Warrant Agreement by and between the Company and
The Bank of New York (the “Warrant Agreement”) substantially in the form filed with the
Registration Statement as Exhibit 4.4.
4.6.2 Closing Date Deliveries by the Initial Stockholders. On the Closing
Date, the Initial Stockholders shall have delivered to the Representative executed copies of
the following agreements:
(a) Lock-up Agreements. Lock-up agreements between each Initial
Stockholder and the Representative in the form filed with the Registration Statement as
Exhibit 10.3.
(b) Insider Letters. Letter agreements between each Initial Stockholder
and the Representative in the form filed with the Registration Statement as Exhibit 10.2.
(c) Warrant Purchase Commitment Agreement. The Warrant Purchase
Commitment Agreement in the form filed with the Registration Statement as Exhibit 10.10.
4.7 Opinion of Counsel for the Underwriters. You shall have received from GT a
favorable opinion, dated the Closing Date and the Option Closing Date, if any, with respect to such
of these proceedings as you may reasonably require. On or prior to the Effective Date, the Closing
Date and the Option Closing Date, as the case may be, GT shall have been furnished such documents,
certificates and opinions as they may reasonably require for the purpose of enabling them to review
or pass upon the matters referred to in this Section 4.7, or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or conditions herein
contained.
4.8 Secondary Market Trading Survey. On the Closing Date, the Representative shall
have received a written report detailing those states in which the Public Securities may be traded
in non-issuer transactions under the Blue Sky laws of the fifty states from GT (the “Secondary
Market Trading Survey”); provided, that the Representative shall have used commercially
reasonable efforts to cause the delivery of such report on or prior to the Closing Date.
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5. Indemnification.
5.1 Indemnification of Underwriters.
5.1.1 General. Subject to the conditions set forth below, the Company agrees
to indemnify and hold harmless each of the Underwriters and each of their respective
directors, officers and employees and each person, if any, who controls any such Underwriter
(“controlling person”) within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all legal or other expenses reasonably incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, whether arising out of any action between any of the Underwriters and the
Company or between any of the Underwriters and any third party or otherwise) to which they or
any of them may become subject under the Act, the Exchange Act or any other statute or at
common law or otherwise or under the laws of foreign countries, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in (i) any
Preliminary Prospectus, the Registration Statement or the Prospectus (as from time to time
each may be amended and supplemented), or (ii) any application or notice filing or any related
written communication, in each case, which has been (a) previously reviewed and approved in
writing by the Company’s chief executive officer or president, (b) filed with or otherwise
submitted to any governmental agency or body pursuant to Section 3.3 of this Agreement and (c)
executed by the Company or prepared and filed or submitted at the request of the Company (in
this Section 5 collectively called “application”); or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, that the Company shall not be liable hereunder to the extent such statement
or omission was made in reliance upon and in conformity with written information furnished to
the Company with respect to an Underwriter by or on behalf of such Underwriter expressly for
use in any Preliminary Prospectus, the Registration Statement or Prospectus, or any amendment
or supplement thereof, or in any application, as the case may be (it being understood and
agreed that the only such information is that described as such in Section 5.4 hereof). With
respect to any untrue statement or omission or alleged untrue statement or omission made in
the Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not
inure to the benefit of any Underwriter to the extent that any loss, liability, claim, damage
or expense of such Underwriter results from the fact that a copy of the Prospectus was not
given or sent to the person asserting any such loss, liability, claim or damage at or prior to
the written confirmation of sale of the Public Securities to such person as required by the
Act and the Regulations, and if the untrue statement or omission has been corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by
the Company with its obligations under Section 3.4 hereof. The Company agrees promptly to
notify the Representative of the commencement of any litigation or proceedings against the
Company or any of its officers, directors or controlling persons in connection with the issue
and sale of the Public Securities or in connection with the Registration Statement or
Prospectus.
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5.1.2 Procedure. If any action is brought against an Underwriter, or a
controlling person in respect of which indemnity may be sought against the Company pursuant to
Sections 5.1.1 or 5.1.2 hereof, such Underwriter shall promptly notify the Company in writing
of the institution of such action and the Company shall assume the defense of such action,
including the employment and fees of counsel (subject to the reasonable approval of such
Underwriter) and payment of actual expenses; provided, that the failure to give such
notice shall not relieve the Company from any liability it may have under Sections 5.1.1 or
5.1.2 hereof, except to the extent the Company has been materially prejudiced (through
forfeiture of substantive rights or defenses) by such failure and; provided
further, that the failure to notify the Company shall not relieve the Company from any
liability that it may have to an indemnified party as determined under Sections 5.1.1 or 5.1.2
hereof. Such Underwriter or controlling person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or controlling person unless (i) the employment of such counsel at the
expense of the Company shall have been authorized in writing by the Company in connection with
the defense of such action, (ii) the Company shall not have employed counsel to take charge of
the defense of such action within a reasonable period of time, or (iii) such indemnified party
or parties shall have been advised by counsel that there is an actual conflict between the
parties as to such defenses, in which case the reasonable fees and expenses of not more than
one additional firm of attorneys selected by, collectively, the Underwriter and controlling
person shall be borne by the Company.
5.2 Indemnification of the Company. Each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless the Company, its directors, officers and employees and agents
who control the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in the foregoing
indemnity from the Company to the several Underwriters, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions made in any Preliminary
Prospectus, the Registration Statement or Prospectus or any amendment or supplement thereto or in
any application, in reliance upon written information furnished to the Company with respect to such
Underwriter by or on behalf of the Underwriter expressly for use in such Preliminary Prospectus,
the Registration Statement or Prospectus or any amendment or supplement thereto or in any such
application (it being understood and agreed that the only such information is that described as
such in Section 5.4 hereof). In case any action shall be brought against the Company or any other
person so indemnified based on any Preliminary Prospectus, the Registration Statement or Prospectus
or any amendment or supplement thereto or any application, and in respect of which indemnity may be
sought against any Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the rights and duties
given to the several Underwriters by the provisions of Section 5.1.2 hereof.
5.3 Contribution.
5.3.1 Contribution Rights. In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to indemnification
under this
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Section 5
(“Indemnified Party”) makes claim for indemnification pursuant hereto but it is
judicially determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the fact that this
Section 5 provides for indemnification in such case, (ii) contribution under the Act, the
Exchange Act or otherwise may be required on the part of any such person in circumstances for
which indemnification is provided under this Section 5, or (iii) if the indemnification
provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified
party under Subsections 5.1 and 5.2 above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then, and in each such case,
the indemnifying parties (as defined below) shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by this Section 5
incurred by the indemnified parties in such proportions as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
from the Offering. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to give the notice
required under Sections 5.1.2 above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party 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 the Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions pursuant to this
Section 5.3.1 were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 5.3.1. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 5.3.1 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 5.3.1, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Public
Securities underwritten by it and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise been required to pay in respect
of such losses, liabilities, claims, damages and expenses. For
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purposes of this Section, each director, officer and employee of an Underwriter or the
Company, as applicable, and each person, if any, who controls an Underwriter or the Company,
as applicable, within the meaning of Section 15 of the Act shall have the same rights to
contribution as the Underwriters or the Company, as applicable.
5.3.2 Contribution Procedure. Promptly after receipt by any party to this
Agreement (or its representative) of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of the
commencement thereof, but the omission to so notify the contributing party will not relieve it
from any liability which it may have to any other party other than for contribution hereunder.
In case any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof within the
aforesaid fifteen days, the contributing party will be entitled to participate therein with
the notifying party and any other contributing party similarly notified. Any such contributing
party shall not agree to a settlement or compromise of, or consent to entry of judgment with
respect to, any claim, action, or proceeding effected by such party without the written
consent of each contributing party unless such settlement, compromise or judgment (i) includes
an unconditional release of the contributing party from all liability arising out of such
action, claim or proceeding, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any contributing party. The
contribution provisions contained in this Section are intended to supersede, to the extent
permitted by law, any right to contribution under the Act, the Exchange Act or otherwise
available. The Underwriters’ obligations to contribute pursuant to this Section 5.3 are
several and not joint.
5.4 Information Provided by Underwriters. It is agreed that the only information
supplied by the Underwriters (the “Underwriter
Information”) in writing for use in the Registration
Statement, the Preliminary Prospectus or the Prospectus is set forth in (A) the table immediately
under the first paragraph under the heading “Underwriting,” (B) the first paragraph under the
heading “Underwriting — Pricing of Securities” and (C) the second sentence of the first paragraph,
under the heading “Underwriting — Regulatory Restrictions on Purchase of Securities.” The Company
has not omitted from the Prospectus any Underwriter Information, the inclusion of which was
requested by the Underwriters in a written communication referencing this Section 5.4.
6. Default by an Underwriter.
6.1 Default Not Exceeding 10% of Firm Units or Option Units. If any Underwriter or
Underwriters shall default in its or their obligations to purchase the Firm Units or the Option
Units, if the over-allotment option is exercised, hereunder, and if the number of the Firm Units or
Option Units with respect to which such default relates does not exceed in the aggregate 10% of the
number of Firm Units or Option Units that all Underwriters have agreed to purchase hereunder, then
such Firm Units or Option Units to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to their respective commitments hereunder.
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6.2 Default Exceeding 10% of Firm Units or Option Units. In the event that the
default addressed in Section 6.1 above relates to more than 10% of the Firm Units or Option Units,
you may in your discretion arrange for yourself or for another party or parties to purchase such
Firm Units or Option Units to which such default relates on the terms contained herein. If within
one business day after such default relating to more than 10% of the Firm Units or Option Units you
do not arrange for the purchase of such Firm Units or Option Units, then the Company shall be
entitled to a further period of one business day within which to procure another party or parties
reasonably satisfactory to you to purchase said Firm Units or Option Units on such terms. In the
event that neither you nor the Company arrange for the purchase of the Firm Units or Option Units
to which a default relates as provided in this Section 6, this Agreement will be terminated without
liability on the part of the Company (except as provided in Sections 3.8 and 5 hereof) or the
several Underwriters (except as provided in Section 5 hereof); provided, however,
that if such default occurs with respect to the Option Units, this Agreement will not terminate as
to the Firm Units; and provided, further, that nothing herein shall relieve a
defaulting Underwriter of its liability, if any, to the other several Underwriters and to the
Company for damages occasioned by its default hereunder.
6.3 Postponement of Closing Date. In the event that the Firm Units or Option Units
to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties as aforesaid, you or the Company shall have the right to
postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event
exceeding five business days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment to the Registration Statement or the Prospectus that
in the opinion of counsel for the Underwriters may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any party substituted under this Section 6
with like effect as if it had originally been a party to this Agreement with respect to such Public
Securities.
7. Representations and Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this Agreement shall be
deemed to be representations, warranties and agreements as of the Closing Date or the Option
Closing Date, if any, and such representations, warranties and agreements of the Underwriters and
Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative
and in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, the Company or any controlling person, and shall survive termination of this Agreement
or the issuance and delivery of the Public Securities to the several Underwriters.
8. Effective Date of This Agreement and Termination Thereof.
8.1 Effective Date. This Agreement shall become effective on the Effective Date at
the time the Registration Statement is declared effective by the Commission.
8.2 Termination. You shall have the right to terminate this Agreement at any time
prior to any Closing Date, (i) if any domestic or international event or act or occurrence has
materially
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disrupted general securities markets in the United States; (ii) if any material governmental
restrictions have been imposed on trading in securities in general, (iii) if the Congress of the
United States or any state legislative body approves or enacts any act or measure, or any
governmental body, any authoritative accounting institute or board or any governmental executive
adopts or proposes to adopt any order, rule, legislation or regulation that the Representative
reasonably believes could reasonably be expected, individually or in the aggregate, to have a
material adverse impact on the market for the Public Securities, (iv) if trading on the New York
Stock Exchange, the American Stock Exchange, the Boston Stock Exchange or on the NASD OTC Bulletin
Board (or successor trading market) shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed,
or maximum ranges for prices for securities shall have been required on the NASD OTC Bulletin Board
or by order of the Commission or any other government authority having jurisdiction, (v) if the
United States shall have become involved in a new war or a material increase in major hostilities,
(vi) if a banking moratorium has been declared by a New York State or federal authority, (vii) if
any of the Company’s representations, warranties or covenants hereunder are breached, or (viii) if
a moratorium on foreign exchange trading has been declared which materially adversely impacts the
United States securities market, or (ix) if the Representative shall have become aware after the
date hereof of such a material adverse change in the conditions or prospects of the Company, or
such adverse material change in general market conditions, including without limitation as a result
of terrorist activities after the date hereof, as in the Representative’s judgment (or reasonable
judgment in the case of clauses (i) and (v) above) would make it impracticable to proceed with the
offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for
the sale of the Public Securities.
8.3 Expenses. Notwithstanding any contrary provision contained in this Agreement,
in the event that this Agreement shall not be carried out for any reason whatsoever, within the
time specified herein or any extensions thereof pursuant to the terms herein, the Company and each
of the Underwriters, including the Representative, agree that each such party shall bear its own
respective costs and expenses and no payment or reimbursement, or claim in respect thereof, shall
be made or claimed hereunder, including under Section 3.8 hereof.
8.4 Indemnification. Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement after the Closing Date, the
provisions of Section 5 hereof shall not be in any way effected by such election or termination.
9. Miscellaneous.
9.1 Notices. All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and shall be mailed, delivered or telecopied and confirmed and shall
be deemed given when so delivered or telecopied and confirmed or if mailed, two days after such
mailing:
If
to the Representative:
BB&T Capital Markets,
a Division of Xxxxx & Xxxxxxxxxxxx, Inc.
BB&T Capital Markets,
a Division of Xxxxx & Xxxxxxxxxxxx, Inc.
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000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: [___]
Xxxxxxxx, Xxxxxxxx 00000
Attn: [___]
Copy to:
Xxxxxxxxx Traurig, LLP
0000 Xxxxxx Xxxx.
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxx Xxxx.
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the Company:
Global Logistics Acquisition Corporation
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, President and Chief Executive Officer
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, President and Chief Executive Officer
Copy to:
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
9.2 Headings. The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or interpretation of any of the
terms or provisions of this Agreement.
9.3 Amendment. This Agreement may only be amended by a written instrument executed
by each of the parties hereto.
9.4 Entire Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersede all prior agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof.
9.5 Binding Effect. This Agreement shall inure solely to the benefit of and shall
be binding upon the Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any
provisions herein contained.
-25-
9.6 Governing Law. This Agreement shall be governed by and interpreted and
construed in accordance with the laws of the State of New York applicable to contracts formed and
to be performed entirely within the State of New York, without regard to the conflicts of law
provisions thereof to the extent such principles or rules would require or permit the application
of the laws of another jurisdiction. The Company and the Underwriters irrevocably and
unconditionally submit to the exclusive jurisdiction of the United States District Court for the
Southern District of New York or, if such court does not have jurisdiction, the New York State
Supreme Court in the Borough of Manhattan, in any action arising out of or relating to this
Agreement, agree that all claims in respect of the action may be heard and determined in any such
court and agree not to bring any action arising out of or relating to this Agreement in any other
court. In any action, the Company and the Underwriters irrevocably and unconditionally waive and
agree not to assert by way of motion, as a defense or otherwise any claims that it is not subject
to the jurisdiction of the above court, that such action is brought in an inconvenient forum or
that the venue of such action is improper. Without limiting the foregoing, the Company and the
Underwriters agree that service of process at each parties respective addresses as provided for in
this Section 9 above shall be deemed effective service of process on such party. The Company and
the Underwriters agree that the prevailing party(ies) in any such action shall be entitled to
recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to
such action or proceeding and/or incurred in connection with the preparation therefor.
9.7 Execution in Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.
9.8 Waiver, Etc. The failure of any of the parties hereto to at any time enforce
any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such
provision, nor to in any way effect the validity of this Agreement or any provision hereof or the
right of any of the parties hereto to thereafter enforce each and every provision of this
Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of
this Agreement shall be effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other
or subsequent breach, non-compliance or non-fulfillment.
[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the Company.
Very truly yours, |
||||
By: |
||||
| Name: Title: |
Xxxxxxx X. Xxxxx President and Chief Executive Officer |
|||
Accepted as of the date hereof at Richmond, Virginia: |
||||
BB&T CAPITAL MARKETS, A Division of Xxxxx & Xxxxxxxxxxxx, Inc., |
||||
By: |
BB&T CAPITAL MARKETS, a Division of Xxxxx & Xxxxxxxxxxxx, Inc., on behalf of each of the Underwriters |
|||
| By: | ||||
| Name: Title: |
||||
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SCHEDULE I
10,000,000 Units
| Number of Firm Units | ||||
| Underwriter | to be Purchased | |||
BB&T Capital Markets, a
Division of Xxxxx &
Xxxxxxxxxxxx, Inc. Early Bird Capital, Inc. Xxxxx Xxxxxx, Carret & Co., LLC |
||||
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