Exhibit 1.1
Alternative Asset Management Acquisition Corp.
20,000,000 Units(1)
Common Stock
Warrants
Underwriting Agreement
New York, New York
, 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several underwriters listed
in Schedule I hereto (the "Underwriters")
Ladies and Gentlemen:
Alternative Asset Management Acquisition Corp., a corporation organized
under the laws of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom Citigroup
Global Markets Inc. (the "Representative") is acting as representative, an
aggregate of 20,000,000 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 Underwriters an option
to purchase up to an additional 3,000,000 Units to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). Certain capitalized
terms used in this agreement and not otherwise defined are defined in Section 20
hereof.
Each Unit consists of one share of the Company's common stock, par value
$.0001 per share (the "Common Stock"), and one warrant to purchase one share of
Common Stock (a "Warrant"). The shares of Common Stock and the Warrants included
in the Units will not be separately transferable until five (5) business days
following the earlier of the expiration of the Underwriters' over-allotment
option (as described below) or the exercise in full of such option, subject to
(a) the preparation of an audited balance sheet of the Company reflecting
receipt by the Company of the proceeds of the offering of the Securities and the
filing by the Company of such audited balance sheet with the Commission on a
Form 8-K or similar form and (b) the Company issuing a press release announcing
when such separate trading will begin. Each Warrant entitles its holder, upon
exercise, to purchase one share of Common Stock for $7.50, subject to certain
adjustments, during the period commencing on the later of the completion by the
Company of its Initial Business Combination or fifteen months from the date of
the Prospectus (as defined herein) and terminating on the five-year anniversary
of the date of the
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(1) Plus an option to purchase from the Company, up to 3,000,000 additional
Units to cover over-allotments.
Prospectus or earlier upon redemption or liquidation of the Trust Account (as
defined below). As used herein, the term "Initial Business Combination" shall
mean any acquisition, through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or similar business combination, of
one or more businesses or assets.
On February 25, 2007, pursuant to a Stock Purchase Agreement ("the Stock
Purchase Agreement") the Company sold in a private placement to Jakal
Investments LLC ("Jakal"), and Jakal purchased from the Company, 5,750,000
shares (as adjusted for a 0.226667 per share stock dividend on July 5, 2007) of
Common Stock (the "Founders' Shares"), for an aggregate purchase price of
$25,000, and on July 6, 2007, pursuant to an Amended and Restated Sponsors'
Warrants Securities Purchase Agreement (the "Warrant Purchase Agreement" and
collectively with the Stock Purchase Agreement, the "Purchase Agreements") the
Company agreed to sell to Hanover Overseas Limited, STC Investment Holdings LLC,
Solar Capital, LLC, Jakal and Xxxxxx X. Xxxxxxxx (collectively, the "Sponsors")
and the Sponsors agreed to purchase from the Company on the Closing Date (as
defined herein) 4,625,000 warrants to purchase one share of Common Stock (the
"Sponsors' Warrants") for an aggregate purchase price of $4,625,000. A total of
5,203,750 of the Founders' Shares were subsequently sold by Jakal to Hanover
Overseas Limited, STC Investment Holdings LLC, Solar Capital, LLC, Xxxxx
Xxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxx and Xxxxxxxxx Xxxxxxx (together
with Jakal, the "Founders"), in private transactions. The Founders' Shares are
identical to the shares of Common Stock contained in the Units except that the
Founders have each agreed (i) to vote the Founders' Shares in accordance with
the majority of the shares of Common Stock voted by the Public Stockholders (as
herein defined) in connection with the vote on any Initial Business Combination,
(ii) to waive any right to receive a liquidation distribution in the event the
Company fails to consummate an Initial Business Combination, and (iii) not to
sell or otherwise transfer any of the Founders' Shares until one year after the
date of the completion of an Initial Business Combination or earlier if,
subsequent to the Company's Initial Business Combination (x) the closing price
of the Company's Common Stock equals or exceeds $14.25 per share for any 20
trading days within any 30-trading day period or (y) the Company consummates a
subsequent liquidation, merger, stock exchange or other similar transaction
which results in all of the Company's stockholders having the right to exchange
their shares of Common Stock for cash, securities or other property; provided,
however that transfers can be made to permitted transferees who agree in writing
to be bound to the transfer restrictions, agree to vote the applicable shares in
accordance with the majority of the shares of Common Stock voted by the Public
Stockholders in connection with the vote on any Initial Business Combination and
waive any rights to participate in any liquidation distribution if the Company
fails to consummate an Initial Business Combination. The Sponsors' Warrants are
identical to the Warrants contained in the Units except that (i) they are not
redeemable while held by the Sponsors or their respective permitted transferees
and (ii) the Sponsors have agreed not to sell or otherwise transfer any of the
Sponsors' Warrants until 30 days after the date of the completion of an Initial
Business Combination, except to permitted transferees who agree in writing to be
bound by such transfer restrictions.
The Company has entered into a Warrant Agreement, dated as of the date
hereof, with respect to the Warrants and the Sponsors' Warrants, with the
Continental Stock Transfer & Trust Company, as warrant agent (the "Warrant
Agent"), in substantially the form filed as an exhibit to the Registration
Statement (the "Warrant Agreement").
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Each of Hanover Group, STC Investment Holdings LLC and Solar Capital, LLC
has entered into an agreement (each a "Buyback Agreement" and collectively the
"Buyback Agreements") with Citigroup Global Markets Inc. (in such capacity,
"Citi"), in accordance with Rule 10b5-1 under the Securities Exchange Act of
1934, as amended, pursuant to which they will each place limit orders for up to
$10.0 million of Common Stock ($30.0 million in the aggregate), commencing on
the later of (A) ten business days after the Company files its Current Report on
Form 8-K announcing the execution of a definitive agreement for an Initial
Business Combination and (B) 60 calendar days after termination of the
"restricted period" under Regulation M and ending on the business day
immediately preceding the record date for the meeting of stockholders at which
such Initial Business Combination is to be approved (the "Buyback Period").
These limit orders will require Hanover Group, STC Investment Holdings LLC and
Solar Capital, LLC (the "Buyback Purchasers") to purchase any shares of Common
Stock offered for sale (and not purchased by another investor) at or below a
price equal to the per share amount held in the Trust Account (as defined
herein) as reported in such Form 8-K, until the earlier of the expiration of the
Buyback Period or until such purchases reach $30.0 million in total. The
purchase of such shares will be made by Citi or another broker dealer mutually
agreed upon by Citi and the Buyback Purchasers. It is intended that such
purchases will comply with Rule 10b-18 under the Exchange Act. Each of the
Buyback Purchasers may vote the shares purchases pursuant to the Buyback
Agreements in any way they choose at the stockholders meeting to approve the
Company's Initial Business Combination but will not be permitted to exercise
conversion rights with respect to such shares in the event they vote against an
Initial Business Combination that is approved; provided that the Buyback
Purchasers will participate in any liquidation distributions with respect to
such shares, in the event the Company fails to complete an Initial Business
Combination. In addition, the Buyback Purchasers have agreed that they will not
sell or transfer any shares of Common Stock purchased by them pursuant to the
Buyback Agreements until one year after the Company has completed its Initial
Business Combination. Pursuant to the Buyback Agreements, the Buyback Purchasers
have agreed to make available to the Representative quarterly statements
confirming that they each have sufficient funds to satisfy these transactions.
The Company will enter into an Investment Management Trust Agreement,
dated no later than the Closing Date, with Continental Stock Transfer & Trust
Company (the "Trustee"), as trustee, in substantially the form filed as an
exhibit to the Registration Statement (the "Trust Agreement"), pursuant to which
the proceeds from the sale of the Sponsors' Warrants and certain proceeds of the
offering of the Securities will be deposited and held in a trust account (the
"Trust Account") for the benefit of the Company, the Underwriters and holders of
the Securities.
The Company has entered into an agreement substantially in the form filed
as an exhibit to the Registration Statement (the "Services Agreement") with
Hanover Group US LLC, an entity affiliated with one of the Company's directors
and executive officers, pursuant to which the Company will pay an aggregate
monthly fee of $10,000 for office space and secretarial and administrative
services from the date hereof until the earlier of (i) the consummation of the
Initial Business Combination and (ii) the liquidation of the Company.
The Company will enter into a Registration Rights Agreement, dated no
later than the Closing Date in substantially the form filed as an exhibit to the
Registration Statement (the
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"Registration Rights Agreement"), pursuant to which the Company will grant
certain registration rights to the Founders and Sponsors and their Permitted
Transferees in respect of the Founders' Shares, the Sponsors' Warrants and the
shares of Common Stock issuable upon the exercise of the Sponsors' Warrants.
The Company will cause the holders of the Founders' Shares, the Sponsors'
Warrants and each of the Company's directors and executive officers to enter
into letter agreements dated no later than the Closing Date, in substantially
the form filed as exhibits to the Registration Statement (the "Insider
Letters"), pursuant to which each of such holder and each of the Company's
directors and executive officers agrees to certain matters described as being
agreed to by them under the "Proposed Business" section of the Statutory
Prospectus and the Prospectus.
The Company has caused to be duly executed and delivered a Right of First
Review Agreement, dated as of [________], 2007, with Hanover Group US, LLC, Xxxx
X. Xxxxx and Xxxx X. Xxxxxxx, in substantially the form filed as an exhibit to
the Registration Statement (the "Right of First Review Agreement").
The Founders and the Sponsors have deposited the Founders' Shares and the
Sponsors' Warrants in an escrow account (the "Escrow Account") maintained by
Continental Stock Transfer & Trust Company pursuant to an Escrow Agreement dated
as of [______], 2007, substantially in the form filed as an exhibit to the
Registration Statement (the "Escrow Agreement").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representative as used herein shall mean you, as
Underwriter, and the term Underwriters shall mean either the singular or plural
as the context requires.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(1) Effectiveness of Registration Statement. The Company has
prepared and filed with the Commission a registration statement (file
number 333-141593) on Form S-1, including a related Preliminary
Prospectus, for registration under the Act of the offering and sale of the
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 the
Representative. 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 the rules thereunder
and, except to the extent the Representative shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to the Representative prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other
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changes (beyond that contained in the Statutory Prospectus) as o the
Company has advised the Representative, prior to the Execution Time, will
be included or made therein.
The Statutory Prospectus and the Prospectus will, for purposes of
distribution to Canadian Persons, have a Canadian "wrap-around" (the
"Canadian Offering Memorandum").
Insofar as they relate to offers or sales of Securities in Canada,
all references herein to the Preliminary Prospectus, Statutory Prospectus
and the Prospectus shall include the Canadian Offering Memorandum.
(2) Effective Date. 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 supplements thereto)
will, comply in all material respects with the applicable requirements of
the Act and the rules thereunder; 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 a 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 or omitted from 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 Representative 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.
(3) Execution Time. At the Execution Time, the Statutory Prospectus
did 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 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 or omitted from the Statutory Prospectus in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion in the Statutory Prospectus, 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.
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(4) Compliance with Exchange Act. The Company has filed with the
Commission a Form 8-A (File Number ) providing for the registration under
the Exchange Act of the Units, the Common Stock and the Warrants, which
registration is effective on the date hereof.
(5) No Stop Orders, Etc. Neither the Commission nor, to the
Company's knowledge, any state regulatory authority has issued any order
or 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, or has instituted or, to
the Company's knowledge, threatened to institute any proceedings with
respect to such an order.
(6) Disclosure of Agreements. The agreements and documents described
in the Statutory Prospectus, the Registration Statement and the Prospectus
conform in all material respects to the descriptions thereof contained
therein. There is no franchise, contract or other document of a character
required to be described in the Registration Statement, the Statutory
Prospectus or the Prospectus, or to be filed as an exhibit to the
Registration Statement, 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," and "Description of Securities," 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.
(7) Capitalization. The Company's authorized equity capitalization
is as set forth in the Statutory Prospectus, the Registration Statement
and the Prospectus. The capital stock of the Company conforms in all
material respects to the description thereof contained in the Statutory
Prospectus, the Registration Statement and the Prospectus.
(8) Outstanding Securities. The holders of any outstanding
securities of the Company 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 other security of the Company or
similar contractual rights granted by the Company. The offers and sales of
the Founders' Shares and the Sponsors' Warrants were at all relevant
times, based in part on the representations and warranties of the
purchaser of such securities, exempt from registration under the Act. The
holders of outstanding securities of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except
for the Founders Warrants, 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.
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(9) Securities Sold Pursuant to this Agreement.
(i) The Securities have been duly authorized and when executed
by the Company and countersigned and issued and delivered against
payment therefor by the Underwriters pursuant to this Agreement will
be validly issued, fully paid and non-assessable.
(ii) The Common Stock included in the Units has been duly
authorized and, when issued and delivered against payment for the
Securities by the Underwriters pursuant to this Agreement, will be
validly issued, fully paid and non-assessable. The holders of such
Common Stock are not and will not be subject to personal liability
by reason of being such holders; such Common Stock is not and will
not be subject to any preemptive or other similar contractual rights
granted by the Company.
(iii) The Warrants included in the Units have been duly
authorized and, when executed, authenticated, issued and delivered
in the manner set forth in the Warrant Agreement against payment for
the Securities by the Underwriters pursuant to this Agreement, 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.
(iv) The shares of Common Stock issuable upon exercise of the
Warrants included in the Units have been duly authorized and
reserved for issuance and, when issued and delivered against payment
therefor pursuant to the Warrants and the Warrant Agreement, will be
validly issued, fully paid and non-assessable. The holders of such
Common Stock are not and will not be subject to personal liability
by reason of being such holders; such Common Stock is not and will
not be subject to any preemptive or other similar contractual rights
granted by the Company.
(10) Registration Rights of Third Parties. Except as set forth in
the Registration Rights Agreement, 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.
(11) Prior Securities Transactions.
(i) 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
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from its inception through and including the date hereof, except as
disclosed in the Registration Statement.
(ii) Neither the Company nor any of its affiliates has, prior
to the date hereof, made any offer or sale of any securities which
are required to be "integrated" pursuant to the Act or the
Regulations with the offer and sale of the Securities pursuant to
the Registration Statement.
(12) Founders' Shares and Sponsors' Warrants. The Founders' Shares
have been duly authorized and are validly issued and are fully paid and
non-assessable. The Sponsors' Warrants have been duly authorized and, when
executed, authenticated, issued and delivered in the manner set forth in
the Warrant Purchase Agreement against payment therefor by the Sponsors
pursuant to the Warrant Purchase Agreement, 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. The shares of Common Stock issuable upon
exercise of the Sponsors' Warrants have been duly authorized and reserved
for issuance and, when issued and delivered against payment therefor
pursuant to the Warrant Purchase Agreement, Sponsors' Warrants and the
Warrant Agreement, will be validly issued, fully paid and non-assessable.
(13) Due Incorporation; Power and Authority, Etc. The Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware 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, except where the failure
to be so qualified and in good standing would not have a material adverse
effect on the financial condition, prospects, earnings, business or
properties of the Company.
(14) Validity and Binding Effect of Agreements.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Trust Agreement has been duly authorized, and upon
execution and delivery by the Company on or before the Closing Date,
will be 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.
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(iii) 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.
(iv) The Stock Purchase 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
creditor's rights generally from time to time in effect and by
equitable principles of general applicability.
(v) The Warrant Purchase 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 and the
Sponsors in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, or similar laws
affecting creditor's rights generally from time to time in effect
and by equitable principles of general applicability
(vi) 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.
(vii) The Registration Rights Agreement has been duly
authorized, and upon execution and delivery by the Company on or
before the Closing Date, will be 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.
(viii) To the Company's knowledge, each of the Insider Letters
has been duly authorized, executed and delivered by Jakal, Hanover
Overseas Limited, STC Investment Holdings LLC, Solar Capital, LLC
and each of the Company's directors and executive officers
respectively and is a valid and binding agreement of each of Jakal,
Hanover Overseas Limited, STC Investment Holdings LLC, Solar Capital
and each of the Company's directors and executive officers
respectively, enforceable to
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the Company's knowledge against each of Jakal, Hanover Overseas
Limited, STC Investment Holdings LLC, Solar Capital, LLC and each of
the Company's directors and executive officers 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.
(ix) The Right of First Review Agreement has been duly
authorized, executed and delivered by the Company, and to the
Company's knowledge, Hanover Group US, LLC, Xxxx X. Xxxxx and Xxxx
X. Xxxxxxx, and is a valid and binding agreement of the Company, and
to the Company's knowledge, Hanover Group US, LLC, Xxxx X. Xxxxx and
Xxxx X. Xxxxxxx, enforceable in accordance with its terms except as
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or similar laws
affecting creditors' rights generally and by equitable principles of
general applicability (regardless of whether enforceability is
considered in a proceeding in equity or law).
(15) Consents, Approvals, Etc. 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 Stock Purchase Agreements, the
Warrant Purchase Agreement, the Buyback Agreements, the Services
Agreement, the Registration Rights Agreement, or the Insider Letters,
except such as have been obtained under the Act, such as may be required
under the federal and provincial securities laws of Canada, 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.
(16) No Breach or Violation. Neither the issue and sale of the
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 Stock Purchase Agreements, the
Warrant Purchase Agreement, the Services Agreement, the Registration
Rights Agreement, 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 charter or
by-laws 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.
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(17) No Conflicts, Etc. The Company is not in violation or default
of (i) any provision of its charter or bylaws, (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, or (iii) any statute, law, rule, regulation, or judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company.
(18) Investment Company Act. 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 required to register as an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act") and the rules and regulations of the Commission thereunder.
(19) Financial Statements. The financial statements, including the
notes thereto and the supporting schedules, if any, of the Company
included in the Statutory Prospectus, the Prospectus and the Registration
Statement present fairly 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). There are no pro forma or as
adjusted financial statements that are required to be included in the
Statutory Prospectus, the Registration Statement and the Prospectus in
accordance with Regulation S-X that have not been included as so required.
(20) Off-Balance Sheet Arrangements. 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.
(21) Other Data. 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 that
the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are
derived.
(22) Independent Accountants. Xxxxxx & Xxxxxxxx LLP ("Xxxxxx &
Kliegman") are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder and the Public Company Accounting Oversight Board
(including the rules and regulations promulgated by such entity). Xxxxxx &
Kliegman has not,
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during the periods covered by the financial statements included in the
Statutory Prospectus and the Prospectus, provided to the Company any
non-audit services, as such term is used in Section 10A(g) of the Exchange
Act.
(23) Disclosure Controls and Procedures. The Company maintains
effective "disclosure controls and procedures" (as defined under Rule
13a-15(e) under the Exchange Act).
(24) Xxxxxxxx-Xxxxx/AMEX Rules.
(i) Solely to the extent that the Xxxxxxxx-Xxxxx Act of 2002,
as amended, and the rules and regulations promulgated by the
Commission thereunder (the "Xxxxxxxx-Xxxxx Act") have been
applicable to the Company, there is and has been no failure on the
part of the Company to comply with any provision of the
Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to
ensure that it is in compliance with all provisions of the
Xxxxxxxx-Xxxxx Act that are in effect and with which the Company is
required to comply and is actively taking steps to ensure that it
will be in compliance with other provisions of the Xxxxxxxx-Xxxxx
Act not currently in effect or which will become applicable to the
Company.
(ii) There is and has been no failure on the part of the
Company or, to the knowledge of the Company, 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, Part 8 of the American
Stock Exchange's AMEX Company Guide, as amended (the "AMEX Company
Guide"). Further, there is and has been no failure on the part of
the Company or, to the knowledge of the Company, 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, all other
provisions of the American Stock Exchange corporate governance
requirements set forth in the AMEX Company Guide.
(25) Transfer Taxes. 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.
(26) Ownership. The Company owns or leases all such properties as
are necessary to the conduct of its operations as presently conducted.
(27) Litigation; Government Proceedings. 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, any Founder or Sponsor, or its or their property is pending or,
to the knowledge of the Company,
12
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 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).
(28) Tax Returns. The Company (i) has filed all foreign, federal,
state and local tax returns that are required to be filed by it or has
requested extensions thereof (except in any case in which the failure to
so file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company, taken as a whole, whether or not arising from transactions in
the ordinary course of business) and (ii) 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).
(29) Licenses and Permits. 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 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).
(30) Stabilization. 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.
(31) Certain Regulatory Matters.
(i) Foreign Corrupt Practices Act. Neither the Company nor any
director, officer, agent or affiliate of the Company is aware of or
has taken any action, directly or indirectly, that would result in a
violation by
13
such Persons of the FCPA (as defined below), 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 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. "FCPA" means
Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(ii) Money Laundering Laws. The operations of the Company are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, including the Money
Laundering Control Act of 1986, as amended, 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 knowledge
of the Company, threatened.
(iii) OFAC. Neither the Company nor, any director, officer,
agent or affiliate of the Company is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC"); and the Company (either
directly or through the Trust Account) 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 U.S.
sanctions administered by OFAC.
(iv) Bank Secrecy Act; Money Laundering; Patriot Act. Neither
the Company nor, to the knowledge of the Company, any officer or
director 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.
14
(32) D&O Questionnaires. To the knowledge of the Company, all
information contained in the questionnaires (the "Questionnaires")
completed by each of the Company's officers and directors and provided to
the Underwriters as an exhibit to his or her Insider Letter is true and
correct and the Company has not become aware of any information which
would cause the information disclosed in the Questionnaires completed by
the Company's officers or directors to become inaccurate and incorrect.
(33) Initial Business Combination. Except as disclosed in the
Statutory Prospectus and the Prospectus, prior to the date hereof, none of
the Company, its officers and directors nor any affiliates thereof had,
and as of the Closing Date, the Company and such officers and directors
and their affiliates will not have had: (a) any specific Initial Business
Combination under consideration or contemplation or (b) any interactions
or discussions with any target business relating to a possible Initial
Business Combination.
(34) NASD Matters.
(i) Except as described in the Statutory Prospectus and the
Prospectus, there are no claims, payments, arrangements, contracts,
agreements or understandings relating to the payment of a brokerage
commission or finder's, consulting, origination or similar fee by
the Company, or any of the Founders or Sponsors with respect to the
sale of the Securities hereunder or any other arrangements,
agreements or understandings of the Company or, to the knowledge of
the Company, any Founder or Sponsor that may affect the
Underwriters' compensation, as determined by the National
Association of Securities Dealers, Inc. (the "NASD").
(ii) 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
NASD member; 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
the Underwriters.
(iii) Other than Xxxx X. Xxxxx, 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, a person associated, or
affiliated with a member of the NASD.
(iv) Other than Xxxx X. Xxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxxx
X. Xxxx, no Company Affiliate is an owner of stock or other
15
securities of any member of the NASD (other than securities
purchased on the open market).
(v) No Company Affiliate has made a subordinated loan to any
member of the NASD.
(vi) 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 NASD member, or any persons
associated or affiliated with a member of the NASD.
(vii) 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 NASD rules) of such an underwriter within the 180-day
period prior to the initial filing date of the Registration
Statement.
(viii) 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 the NASD.
(ix) No NASD 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 the NASD 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. "NASD member participating in the Offering"
includes any associated person of an NASD member that is
participating in the Offering, any members of such associated
person's immediate family, and any affiliate of an NASD member that
is participating in the Offering.
(35) Non-Competition Agreements. To the knowledge of the Company,
none of the Founders or Sponsors nor any director or officer of the
Company is subject to a non-competition agreement or non-solicitation
agreement with any employer or prior employer which could materially
affect its ability to be and act in the capacity of shareholder, officer
or director of the Company.
(36) Subsidiaries. The Company does not own an interest in any
corporation, partnership, limited liability company, joint venture, trust
or other entity.
(37) Related Party Transactions. 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,
special advisor, 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
16
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.
(38) No Influence. The Company has not offered, or caused the
Underwriters to offer, the 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.
(39) Free Writing Prospectus. The Company has not prepared or used
an Issuer Free Writing Prospectus.
(40) Rule 419. Upon delivery and payment for the Underwritten
Securities on the Closing Date, 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.
Any certificate signed by any officer of the Company and delivered to the
Representative 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 $9.60 per Unit (subject to adjustment pursuant to Section 2(c)),
the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to 3,000,000 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 30th day after the date
of the Prospectus upon written or telegraphic notice by the Representative
to the Company setting forth the number of Option Securities as to which
the several Underwriters are exercising the option and the settlement
date. Each Underwriter shall purchase the same
17
percentage of the total number of Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
(c) In addition to the discount from the public offering price of
$10.00 per Unit represented by the purchase price set forth in Section
2(a), the Company hereby agrees to pay to the Underwriters a deferred
discount of $0.30 per Unit (for 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 as
described in the Registration Statement if and when the Company
consummates a Initial Business Combination. The Underwriters hereby agree
that if no Initial 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 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 as described in the Registration Statement. The Company hereby
agrees that it will not make any amendments to the Trust Agreement or to
Exhibit A to the Trust Agreement in such a manner as to adversely affect
the right of the Underwriters to receive the Deferred Discount as
contemplated herein and therein without the written consent of the
Underwriters.
3. Delivery and Payment. (a) 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, 2007, or
at such time on such later date not more than three Business Days after the
foregoing date as the Representative shall designate, which date and time may be
postponed by agreement between the Representative 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 Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the
Company. Delivery of the Underwritten Securities and the Option Securities shall
be made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct.
(b) Payment for the Underwritten Securities shall be made as follows:
$[______________] shall be deposited in the Trust Account pursuant to the terms
of the Trust Agreement and $[_____________] shall be paid to the order of the
Company upon delivery to the Representative of certificates (in form and
substance satisfactory to the Representative) representing the Underwritten
Securities (or through the facilities of the Depository Trust Company (the
"DTC")) for the account of the Underwriters. The Underwritten Securities shall
be registered in such name or names and in such authorized denominations as the
Representative may request in writing at least two (2) Business Days prior to
the Closing Date. The Company will permit the Representative to examine and
package the Underwritten Securities for delivery, at least one (1) Business Day
prior to the Closing Date. The Company shall not be obligated to
18
sell or deliver the Underwritten Securities except upon tender of payment by the
Representative for all the Underwritten Securities.
(c) Payment for the Option Securities shall be made as follows:
approximately $[___] per Option Security shall be deposited in the Trust Account
pursuant to the Trust Agreement upon delivery to the Representative of
certificates (in form and substance satisfactory to the Underwriters)
representing the Option Securities (or through the facilities of DTC) for the
account of the Underwriters. The certificates representing the Option Securities
to be delivered will be in such denominations and registered in such names as
the Representative request not less than two (2) Business Days prior to the
Closing Date and will be made available to the Representative for inspection,
checking and packaging at the aforesaid office of the Company's transfer agent
or correspondent not less than one (1) Business Day prior to such Closing Date.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of DTC unless the Representative shall otherwise
instruct.
(d) 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 Representative, on the
date specified by the Representative (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
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to an account specified by the
Company. If settlement for the Option Securities occurs after the Closing Date,
the Company will deliver to the Representative 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.
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) Filing of Prospectus; Notice to Representative; Stop Orders.
Prior to the termination of the offering of the Securities, the Company
will not file any amendment to 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 the
Representative objects. The Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by
the Representative with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representative of such timely filing.
The Company will promptly advise the Representative (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, prior to termination of the offering of the
19
Securities, 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 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 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.
(b) Statutory Prospectus. 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
Representative 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) Amendment to Prospectus. If, at any time when a prospectus
relating to the 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 at such time 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
Representative 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) Delivery of Earnings Statements. As soon as practicable, the
Company will make generally available to its security holders and to the
Representative 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.
20
(e) Delivery of Documents. The Company will furnish to the
Representative and counsel for the Underwriters 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 any supplement thereto as the
Representative may reasonably request.
(f) Qualification of Securities. The Company will arrange, if
necessary, for the qualification of the Securities for sale under the laws
of such jurisdictions as the Representative may designate and will
maintain such qualifications in effect so long as required for the
distribution of the 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, in any jurisdiction where it is not now so
subject.
(g) Lock-Up. The Company will not, without the prior written consent
of the Representative, offer, sell, contract to sell, pledge, or otherwise
dispose of, (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,
any other Units, shares of Common Stock, Warrants or any other securities
convertible into, or exercisable, or exchangeable for, shares of Common
Stock; or publicly announce an intention to effect any such transaction,
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 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 Restricted Period the Company announces
that it will release earnings results during the 16 day period beginning
on the last day of the 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 (x) the
Company may issue and sell the Sponsors' Warrants, (y) pursuant to the
Registration Rights Agreement the Company may register with the Commission
the resale, in the case of the Founders, the Founders' Shares and in the
case of the Sponsors, the Sponsors' Warrants and the shares of Common
Stock underlying the Sponsors' Warrants, at any time after the date on
which the Founders' Shares and the Sponsors' Warrants are no longer
subject to the transfer restrictions set forth in the corresponding
Purchase Agreements, and (z) the Company may issue and sell the Option
Securities on exercise of the option provided for in Section 2(b) hereof.
21
(h) No Stabilization or Manipulation. The Company will not take,
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.
(i) Payment of Expenses. 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; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original
issuance and sale of the 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; (v) the registration of the Securities under the Exchange
Act; (vi) any filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such filings,
such fees and expenses of counsel not to exceed $[_____]); (vii) the
listing fee of the American Stock Exchange, (viii) the transportation and
other expenses incurred by or on behalf of Company and its officers and
Representative in connection with presentations to prospective purchasers
of the Securities; (ix) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel)
for the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
(j) Use of Free Writing Prospectus. The Company agrees that it will
not make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a "free
writing prospectus" (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433.
(k) Maintenance of Registration. For a period of at least four (4)
years from the Effective Date, or until such earlier time upon which the
Company is required to be liquidated, the Company will use its best
efforts to maintain the registration of the Units, Common Stock and
Warrants under the provisions of the Exchange Act. The Company will not
deregister the Units, Common Stock or Warrants under the Exchange Act
(except in connection with a going private transaction after the
completion of an Initial Business Combination) without the prior written
consent of the Representative.
(l) Form 8-K. The Company shall, on the date hereof, retain its
registered independent public accountants to audit the financial
statements of the Company as of the
22
Closing Date (the "Audited Financial Statements") reflecting the receipt
by the Company of the proceeds of the Offering and the sale of the
Founders' Shares and the Sponsors' Warrants. As soon as the Audited
Financial Statements become available, the Company shall immediately file
a Current Report on Form 8-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 over-allotment option, the Company shall promptly file a Current
Report on Form 8-K with the Commission, which report shall disclose the
Company's sale of the Option Securities and its receipt of the proceeds
therefrom.
(m) Review of Financial Statements. For a period of at least three
(3) years from the Effective Date or until such earlier time that the
Company is required to be liquidated, the Company, at its expense, shall
cause its regularly engaged independent registered public accounting firm
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.
(n) Publicly Available Statements and Reports. For a period of five
(5) years from the Effective Date or until such earlier time that the
Company is required to be liquidated, the Company will furnish to the
Representative 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 and such additional documents and
information with respect to the Company as the Representative may from
time to time reasonably request.
(o) Affiliate Transactions.
(1) In no event will the fees payable under the Services
Agreement be more than $10,000 per month in the aggregate.
(2) Except as set forth in this subsection (2), the Company
shall not pay the Sponsors, Founders or any of the Company's
directors or officers or any of their affiliates any fees or
compensation of any kind (including finder's and consulting fees)
for services rendered to the Company prior to, or in connection
with, the consummation of the Initial Business Combination; provided
that the Company's officers and directors shall be entitled to
reimbursement from the Company for their out-of-pocket expenses
incurred in connection with seeking and consummating an Initial
Business Combination from the amounts not held in the Trust Account
and interest income of up to $2,200,000 which may be released to the
Company from the Trust Account.
(3) The Company shall not consummate an Initial Business
Combination with any officer, director or Underwriter, or selling
group member, or any of their affiliates.
23
(p) Amendment to the Trust Agreement, Insider Letters, Purchase
Agreements and Right of First Review Agreement. The Company agrees and
warrants that the Trust Agreement, Insider Letters, Purchase Agreements
and Right of First Review Agreement shall not be amended, modified or
otherwise changed without the prior written consent of the Representative.
(q) Net Proceeds. The Company will apply the net proceeds received
by it from the Offering and the sale of the Sponsors' Warrants in a manner
consistent with the applications described under the caption "Use of
Proceeds" in the Statutory Prospectus and the Prospectus.
(r) Notice to NASD.
(1) For a period of 90 days following the Effective Date, in
the event any person or entity (regardless of any NASD 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 the NASD and the
Representative prior to the consummation of the Initial 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 the NASD'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
Initial Business Combination.
(2) 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 a NASD member participating in the distribution
of the Company's Securities.
(s) Investment Company. The Company shall cause the proceeds 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 of 1940, and one or more money market funds, selected by the
Company, which invest principally in either short-term securities issued
or guaranteed by the United States having a rating in the highest
investment category granted thereby by a recognized credit rating agency
at the time of the acquisition or tax exempt municipal bonds issued by
governmental entities located within the United States, 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 the Initial Business
Combination, it will be engaged in a business other than that of
investing, reinvesting, owning, holding or trading securities.
24
(t) Reservation of Shares. The Company will reserve and keep
available that maximum number of its authorized but unissued securities
which are issuable upon exercise of any of the Sponsors' Warrants or the
Warrants outstanding from time to time.
(u) Issuance of Shares. Prior to the consummation of the Initial
Business Combination or the liquidation of the Trust, the Company shall
not issue any shares of Common Stock, Warrants or any options or other
securities convertible into Common Stock, or any shares of preferred stock
which participate in any manner in the Trust Account or which vote as a
class with the Common Stock on an Initial Business Combination.
(v) Audit Committee Review of Expenses. Prior to the consummation of
the Initial Business Combination or the liquidation of the Trust, the
Company shall cause its audit committee to review and approve all payments
made to its officers, directors or the Company's or their affiliates and
any expense reimbursements payable to members of the Company's audit
committee or their affiliates will be reviewed and approved by the
Company's board of directors, with any interested directors abstaining
from such review and approval.
(w) Rule 419. The Company agrees that it will use commercially
reasonable 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.
(x) Internal Controls. The Company will maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that: (1) transactions are executed in accordance with management's
general or specific authorization, (2) transactions are recorded as
necessary in order to permit preparation of financial statements in
accordance with GAAP and to maintain accountability for assets, (3) access
to assets is permitted only in accordance with management's general or
specific authorization, and (4) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(y) American Stock Exchange Listing. The Company will use its best
efforts to effect and maintain the listing of the Units, Common Stock and
Warrants on the American Stock Exchange.
(z) Xxxxxxxx-Xxxxx/AMEX. As soon as it is legally required to do so,
the Company and any of the Company's directors or officers, in their
capacities as such, shall take all actions necessary to (1) comply with
any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley
Act"), including Section 402 related to loans and Sections 302 and 906
related to certifications and (2) comply with the requirements of the
American Stock Exchange's AMEX Company Guide.
25
(aa) Certificate of Incorporation and Bylaws; Warrant Agreement. The
Company shall not take any action or omit to take any action that would
cause the Company to be in breach or violation of its Amended and Restated
Certificate of Incorporation, as amended, or Bylaws, as amended. Prior to
the consummation of an Initial Business Combination or until the
distribution of the Trust Account, the Company will not amend its Amended
and Restated Certificate of Incorporation or the Warrant Agreement without
the prior written consent of the Representative.
(bb) Initial Business Combination.
(1) Trust Account Waiver Acknowledgment. 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 (a "Target Business") or obtaining the
services of any vendor, it will use commercially reasonable efforts
to cause the Target Business or vendor to execute a waiver letter in
the form attached hereto as Exhibit A. If a Target Business or other
third party were to refuse to enter into such a waiver, the Company
hereby agrees to enter into discussions with such Target Business or
engage such other third party only if the Company determines that
the Company could not obtain, on a reasonable basis, substantially
similar services or opportunities from another entity willing to
enter into such a waiver.
(2) Initial Business Combination/Distribution Procedure. Prior
to the consummation of the Initial Business Combination, the Company
will submit such transaction to the Company's stockholders for their
approval (an "Initial 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 an Initial Business Combination
within 24 months from the Effective Date, the Company will notify
the Delaware Secretary of State in writing that its corporate
existence is ceasing as of [ ], 2009 and include with such notice
payment of any franchise taxes then due to or assessable by the
State of Delaware and the Company will be liquidated and will
distribute to all holders of the Common Stock issued as part of the
Units in this Offering (the "IPO Shares"), 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 approved by the independent registered
public accounting firm then engaged by the Company, or (ii) the
amount of funds in the Trust Account (including (a) the proceeds
held in the Trust Account from this 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,
that are not released to the Company to cover its operating expenses
in accordance with Section 5(o)). Only holders of IPO Shares shall
be entitled to receive liquidating distributions and the Company
shall pay no liquidating distributions with respect to any other
shares of capital stock of the Company or Warrants. At the time the
Company seeks approval of the Initial Business Combination, the
Company will offer to each holder of IPO Shares (the
26
"Public Stockholders") the right to convert their shares of Common
Stock at a per share conversion price (the "Conversion Price"),
calculated as of two business days prior to the consummation of such
proposed Initial Business Combination, equal to (A) the amount in
the Trust Account, inclusive of (x) the proceeds from this Offering
and the sale of the Sponsors' Warrants, held in trust, (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, that are not released to the Company
to cover its operating expenses in accordance with Section 5(o),
divided by (B) the total number of IPO Shares. If a majority of the
shares voted by the holders of IPO Shares are voted to approve the
Initial Business Combination, and if holders of less than 30% of the
IPO Shares (minus one share) vote against such approval of the
Initial Business Combination and elect to convert their IPO Shares,
the Company will proceed with such Initial Business Combination. If
the Company proceeds with the Initial Business Combination, it will
convert shares, based upon the Conversion Price, from those holders
of IPO Shares who affirmatively requested such conversion and who
voted against the Initial Business Combination. Only Public
Stockholders 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 of shares of capital stock of the Company. If
holders of 30% (minus one share) or more of the IPO Shares vote
against approval of a potential Initial Business Combination and
elect to convert their IPO Shares, the Company will not proceed with
such Initial Business Combination and will not convert such shares.
(3) Value of Target Business. The Company agrees that the
initial Target Business that it acquires in an Initial Business
Combination must have a fair market value equal to at least 80% of
the sum of the balance in the Trust Account excluding the Deferred
Discount, including any of which relates to the Option Securities,
at the time of such acquisition. The fair market value of such
business must be determined by the Board of Directors of the Company
based upon one or more standards generally accepted by the financial
community, such as actual and potential sales, earnings and cash
flow and book value. If the Board of Directors of the Company is not
able to independently determine that the Target Business has a fair
market value of at least 80% of the sum of the balance in the Trust
Account (excluding the Deferred Discount, including any of which
relates to the Option Securities) at the time of such Initial
Business Combination, the Company will obtain an opinion from an
unaffiliated, independent investment banking firm which is a member
of the NASD with respect to the satisfaction of such criteria. The
Company is not required to obtain an opinion from an investment
banking firm as to the fair market value of the target business if
the Company's Board of Directors independently determines that the
target business does have sufficient fair market value.
(4) Initial Business Combination Announcement. Within five (5)
Business Days following the consummation by the Company of an
Initial Business Combination, the Company shall cause an
announcement (the "Initial
27
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 Representative announcing the
consummation of the Initial Business Combination and indicating that
the Underwriters were the underwriters in the offering. The Company
shall supply the Representative with a draft of the Initial Business
Combination Announcement and provide the Representative with a
reasonable opportunity to comment thereon in advance. The Company
will not place the Initial Business Combination Announcement without
the final approval of the Representative, which approval will not be
unreasonably withheld.
(cc) Deferred Compensation. Upon the consummation of the Initial
Business Combination, the Company will pay to the Representative, 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
Representative and will, instead, be included in the liquidation
distribution of the proceeds held in the Trust Account made to the holders
of the IPO Shares. In connection with any such liquidation distribution,
the Underwriters will forfeit any rights or claims to the Deferred
Discount, including any accrued interest thereon.
(dd) Trust Agreement Communications. The Company agrees to promptly
provide to the Representative copies of all communications sent or
received by it with respect to the Trust Agreement and Trust Account,
including any correspondence with respect to any proposed withdrawal from
the Trust Account, until the earlier of (i) the consummation of the
Initial Business Combination and the payment of the Deferred Discount and
(ii) liquidation of the Company. Without limiting the foregoing, the
Company agrees that upon the earlier of the termination and the exercise
in full of the option provided for in Section 2(b), the Company will
provide written notice of the amount of the Deferred Discount to the
Representative, copying the Trustee. In addition, the Company agrees to
sign or co-sign any notice to the Trustee in connection with delivery of
the Deferred Discount to the Representative pursuant to the terms of the
Trust Agreement.
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) Filing of Prospectus; No Stop Order. 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
28
or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) Opinion of Counsel for the Company. The Company shall have
requested and caused Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the
Company, to have furnished to the Representative their opinion, dated the
Closing Date and addressed to the Representative in form attached hereto
as Exhibit B.
(c) Opinion of Counsel for the Representative. The Representative
shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representative, with respect to the issuance and sale of
the Securities, the Registration Statement, the Statutory Prospectus and
the Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) Officer's Certificate. The Company shall have furnished to the
Representative a certificate of the Company, signed by the Chairman of the
Board or 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, as well as each electronic roadshow
used in connection with the offering of the Securities, and this Agreement
and that:
(x) 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;
(xi) 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
(xii) 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) Secretary's Certificate. The Company shall have furnished to the
Representative a certificate signed by the Secretary or Assistant
Secretary of the
29
Company, dated the Closing Date, 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.
(f) Comfort Letters. The Company shall have requested and caused
Xxxxxx & Kliegman to have furnished to the Representative, 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
satisfactory to the Representative, confirming that they are a registered
public accounting firm that is independent with respect to the Company
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission thereunder, and that they have not, during the
periods covered by the financial statements included in the Registration
Statement, Statutory Prospectus and Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10(A)(g) of the
Exchange Act, and stating in effect that:
(1) in their opinion the 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 in all material respects with the applicable
accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
(2) on the basis of a reading of the latest unaudited
financial statements made available by the Company, if any; 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 of the stockholders, directors and various committees of
the board of directors; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company as to transactions and events subsequent to June 30,
2007, nothing came to their attention which caused them to believe
that with respect to the period subsequent to June 30, 2007, 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 or capital stock of
the Company or decreases in the stockholders' equity of the Company
as compared with the amounts shown on the June 30, 2007 balance
sheet included in the Statutory Prospectus, Registration Statement
and the Prospectus, or for the period from June 30, 2007 to such
specified date there were any increases in net loss or loss before
income taxes (benefit) or in total or per share amounts of net loss
of the Company, except in all instances for changes or increases 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
Representative; and
30
(3) 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
Statutory Prospectus, Registration Statement 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.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Material Change. 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 (1) any change or decrease specified in the letter or letters
referred to in paragraph (f) of this Section 6 or (2) 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 (1) or (2) above, is,
in the sole judgment of the Representative, 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).
(h) Further Information. Prior to the Closing Date, the Company
shall have furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request.
(i) NASD. The NASD shall not have raised any objection with respect
to the fairness or reasonableness of the underwriting or other
arrangements of the transactions contemplated hereby.
(j) Insider Letters. On the Closing Date, the Company shall have
furnished to the Representative Insider Letters, substantially in the form
filed as exhibits to the Registration Statement (as the same may be
amended or supplemented from time to time) from each of Jakal, Hanover
Overseas Limited, STC Investment Holdings LLC, Solar Capital, LLC and any
officer or director of the Company as well as lock up agreements from each
officer and director substantially in the form of Exhibit C-1 hereto.
(k) Listing on the American Stock Exchange. The 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
Representative.
31
(l) Delivery of Agreements. On the Effective Date, the Company shall
have delivered to the Representative executed copies of the Trust
Agreement, the Warrant Agreement, the Purchase Agreements, the Buyback
Agreements, the Services Agreement, the Escrow Agreement and the
Registration Rights Agreement.
(m) No Brokers. At the Execution Time, the Company shall have
requested and caused each of the Founders and Sponsors and the Company's
directors and officers to have executed and furnished to the
Representative a certificate, dated the Closing Date and addressed to the
Representative, to the effect that, except as described in the
Registration Statement, the Statutory Prospectus and the Prospectus, there
are no claims, payments, arrangements, contracts, agreements or
understandings relating to the payment of a brokerage commission or
finder's, consulting, origination or similar fee by any of the Founders or
Sponsors or the Company's directors or officers with respect to the sale
of the Securities hereunder or any other arrangements, agreements or
understandings by any Founder or Sponsor or Company director or officer
that may affect the Underwriters' compensation, as determined by the NASD.
(n) Further Information. Prior to the Closing Date, the Company
shall have furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request.
(o) Trust Account. On the Closing Date, the Company shall have
furnished to the Representative one or more certificates signed by an
authorized officer of the Trustee to the effect of certifying that (i) the
proceeds of $4,625,000 from the sale of the Sponsors' Warrants and (ii)
the net proceeds of $[___________] from the sale of the Securities, shall
have been deposited in the Trust Account.
(p) Escrow Account. The Sponsors and the Founders shall have
deposited the Founders' Shares and the Sponsors' Warrants in the Escrow
Account.
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 Representative 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
Representative. 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 Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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, any Founder or Sponsor, any
holder of the Founders' Shares or Sponsors' Warrants or any director or
32
executive officer 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
Representative on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) 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 as originally filed or in any amendment thereof, or in any
Preliminary Prospectus, 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 Representative specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(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 Representative 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 of the Prospectus regarding delivery of
the Securities, (ii) under the heading "Underwriting" in the Prospectus,
(iii) the list of Underwriters and their respective participation in the
sale of the Securities, (iv) the sentences related to concessions and
reallowances and (v) the paragraphs related to stabilization, syndicate
covering transactions and penalty bids constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus and the Prospectus.
33
(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 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 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 shall
authorize 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, 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.
(d) In the event that the indemnity provided in paragraph (a) or (b)
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 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
34
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 Representative shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be
35
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.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Units, Common Stock 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, the American Stock Exchange
or on the NASDAQ Stock Market (or successor trading market) shall have been
suspended or limited or minimum prices shall have been established on any such
Exchanges or trading market, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representative, 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 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.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representative, will be mailed, delivered
or telefaxed to (a) Citigroup Global Markets Inc. General Counsel (fax no.:
(000) 000-0000) and confirmed to the General Counsel, Citigroup Global Markets
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Executive Officer (fax no.: (212) [ ] and confirmed to Akin Gump Xxxxxxx Xxxxx &
Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxxxxx (fax no.: (000) 000-0000).
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 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
36
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. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
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 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 which 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.
"Canadian Person" shall mean any person who is a national or resident of
Canada, any corporation, partnership, or other entity created or organized in or
under the laws of Canada or of any political subdivision thereof, or any estate
or trust the income of which is subject to Canadian Federal income taxation,
regardless of its source (other than any non-Canadian branch of any Canadian
Person), and shall include any Canadian branch of a person other than a Canadian
Person.
"Commission" shall mean the Securities and Exchange Commission.
37
"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 become 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.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean the 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
information deemed part of such registration statement pursuant to Rule 430A, as
amended or supplemented 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 430B" and "Rule 433" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
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 July
[__], 2007, relating to the Securities.
21. Canada. Each of the Underwriters hereby covenants and agrees that it
will not distribute the Securities in such a manner as to require the filing of
a prospectus or similar document (excluding a private placement offering
memorandum) with respect to the Securities under the laws of any Province or
Territory in Canada.
If the foregoing is in accordance with your understanding of our
agreement, as
38
Representative, 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,
Alternative Asset Management
Acquisition Corp.
By: ________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: _____________________________
Name:
Title:
For itself and the other several
Underwriters named in Schedule I
to the foregoing Agreement.
39
SCHEDULE I
Number of Underwritten Securities
Underwriters to be Purchased
------------ ---------------------------------
Citigroup Global Markets Inc................
Lazard Capital Markets LLC .................
---------------------------------
Total............................
=================================
Form of Trust Claim Waiver Letter EXHIBIT A
[Letterhead Of Prospective Vendor Or Target Business]
, 200__
Alternative Asset Management Acquisition Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We understand that Alternative Asset Management Acquisition Corp. (the
"Company") is a recently organized blank check company formed for the purpose of
acquiring (an "Initial Business Combination") one or more businesses or assets.
We further understand that the Company's sole assets consist of the cash
proceeds of the recent public offering (the "IPO") and private placements of its
securities, and that substantially all of those proceeds have been deposited in
a trust account with a third party (the "Trust Account") for the benefit of the
Company, certain of its stockholders and the underwriters of its IPO. The monies
in the Trust Account may be disbursed only (1) to the Company in limited amounts
from time to time (and in no event more than $1,825,000 in total) in order to
permit the Company to pay its operating expenses; (2) if the Company completes
an Initial Business Combination, to certain dissenting public stockholders, to
the underwriters in the amount of underwriting discounts and commissions they
earned in the IPO but whose payment they have deferred, and then to the Company;
and (3) if the Company fails to complete an Initial Business Combination within
the allotted time period and liquidates, subject to the terms of the agreement
governing the Trust Account, to the Company in limited amounts to permit the
Company to pay the costs and expenses of its liquidation and dissolution, and
then to the Company's public stockholders (as such term is defined in the
agreement governing the Trust Account).
For and in consideration of the Company's agreement to engage our
services, we hereby waive any right, title, interest or claim of any kind (any
"Claim") we have or may have in the future in or to any monies in the Trust
Account and agree not to seek recourse against the Trust Account or any funds
distributed therefrom (except amounts released to the Company as described in
clause (1) of the preceding paragraph) as a result of, or arising out of, any
Claims against the Company in connection with contracts or agreements with the
Company or in connection with services performed for or products provided to the
Company.
This letter shall be governed by and construed and enforced in accordance
with the laws of the State of New York. We hereby irrevocably waive, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this letter or any Claim
subject hereto.
Yours very truly,
[NAME]
By, _______________________________
Name:
Title:
Form of Opinion of Counsel for the Company EXHIBIT B
[to come]
[Form of Lock-Up Agreement] EXHIBIT C-1
[Letterhead of officer or director of Alternative
Asset Management Acquisition Corp.]
Alternative Asset Management Acquisition Corp.
Public Offering of Units
, 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several Underwriters
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Alternative Asset
Management Acquisition Corp., a Delaware corporation (the "Company"), and you as
the Representative of the group of Underwriters named therein, relating to an
underwritten public offering of Units consisting of one share of the Company's
common stock, par value $0.0001 per share (the "Common Stock") and one warrant
to purchase one share of Common Stock 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 Citigroup Global Markets Inc., offer, sell, contract to sell, pledge
or otherwise dispose of, (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 Securities and Exchange 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 Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 180 days after the
date of the Underwriting Agreement; provided, however, that if (1) during the
last 17 days of the 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 Restricted Period the Company announces that it will
release earnings results during the 16 day period beginning on the last day of
the 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.
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 terminate and be of no further force and effect.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
