FORM OF UNDERWRITING AGREEMENT between CAZADOR ACQUISITION CORPORATION LTD. and RODMAN & RENSHAW, LLC as Representative
EXHIBIT
1.1
FORM
OF
between
CAZADOR
ACQUISITION CORPORATION LTD.
and
XXXXXX
& XXXXXXX, LLC
as
Representative
CAZADOR
ACQUISITION CORPORATION LTD.
___________
__, 20__
Xxxxxx
& Xxxxxxx, LLC
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned, CAZADOR
ACQUISITION CORPORATION LTD., a Cayman Islands exempted company with
limited liability (collectively with its subsidiaries and affiliates,
including, without limitation, all entities disclosed or described in the
Registration Statement (as hereinafter defined) as being subsidiaries or
affiliates of the Company, the “Company”), hereby confirms its
agreement with Xxxxxx & Xxxxxxx, LLC (hereinafter referred to as “you”
(including its correlatives) or the “Representative”) and with the
other underwriters named on Schedule 1 hereto for which the Representative is
acting as representative (the Representative and such other underwriters being
collectively called the “Underwriters” or,
individually, an “Underwriter”) as
follows:
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1.
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Purchase and Sale of
Securities.
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1.1 Firm
Securities.
1.1.1. Nature and Purchase of Firm
Securities.
(i) On
the basis of the representations and warranties herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to issue and sell,
severally and not jointly, to the several Underwriters, an aggregate of
5,000,000 units (“Firm
Units”) of the Company.
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the
number of Firm Units set forth opposite their respective names on Schedule 1
attached hereto and made a part hereof at a purchase price (net of discounts and
commissions) of $9.70 per Firm Unit. The Firm Units are to be offered initially
to the public (the “Offering”) at the offering
price of $10.00 per Firm Unit. Each Firm Unit consists of one ordinary share of
the Company, par value $.0001 per share (“Ordinary Shares”), and one
warrant (“Warrants”).
The Ordinary Shares and the Warrants included in the Firm Units will not be
separately transferable until five (5) trading days after the earlier to occur
of the expiration or termination of the Over-Allotment Option (as defined in
Section 1.2 hereof) or the exercise in full by the Underwriters of the
Over-Allotment Option unless the Representative informs the Company of its
decision to allow earlier separate trading, but in no event will the
Representative allow separate trading until the preparation of an audited
balance sheet of the Company reflecting receipt by the Company of the proceeds
of the Offering and the filing of a Form 6-K or Form 8-K by the Company which
includes such balance sheet. Each Warrant entitles its holder to exercise it to
purchase one Ordinary Share for $7.50 during the period commencing on the later
of the consummation by the Company of its “Business Combination” or one year
from the effective date (the “Effective Date”) of the
Registration Statement (as defined in Section 2.1.1 hereof), subject to the requirement
that in each case a registration statement under the Securities Act of 1933, as
amended (the “ACT”) covering the Ordinary Shares issuable upon exercise of the
Warrants is effective and a current prospectus is available for use, and
terminating on the five-year anniversary of the Business Combination (the “Expiration Date”) unless such
Warrant is earlier redeemed at the option of the Company in accordance with the
terms of the Warrant Agreement (as defined in Section 2.22 hereof) (the date of
any such redemption. shall be referred to herein as the “Redemption
Date”). “Business Combination” shall
mean any merger, share capital exchange, asset or stock acquisition, control
through contractual arrangements, or other similar business combination
consummated by the Company with an operating target business (as described more
fully in the Registration Statement)..
1.1.2. Payment and
Delivery.
(i) Delivery
and payment for the Firm Units shall be made at 10:00 a.m., Eastern time, on the
third (3rd)
Business Day following the effective date (the “Effective Date”) of the
Registration Statement (as defined in Section 2.1.2 below) (or the fourth
(4th)
Business Day following the Effective Date, if the Registration Statement is
declared effective after 4:30 p.m.) or at such earlier time as shall be agreed
upon by the Representative and the Company at the offices of Loeb & Loeb LLP
counsel to the Underwriters (“Loeb”), or at such other place
(or remotely by facsimile or other electronic transmission) as shall be agreed
upon by the Representative and the Company. The hour and date of delivery and
payment for the Firm Units is called the “Closing Date.”
(ii) Payment
for the Firm Units shall be made on the Closing Date by wire transfer in Federal
(same day) funds, payable as follows: $50,000,000 of the proceeds received by
the Company for the Firm Units shall be deposited in the trust fund established
by the Company for the benefit of the public shareholders as described in the
Registration Statement (“Trust
Fund”) pursuant to the terms of an Investment Management Trust Agreement
(“Trust Agreement”) and
the remaining proceeds shall be paid to the order of the Company upon delivery
to you (or through the facilities of the Depository Trust Company (“DTC”) of certificates (in form
and substance satisfactory to the Underwriters) representing the Firm Units) for
the account of the Underwriters. The Firm Units shall be registered in such name
or names and in such authorized denominations as the Representative may request
in writing at least two full Business Days prior to the Closing Date. The
Company shall not be obligated to sell or deliver any of the Firm Units except
upon tender of payment by the Representative for all the Firm Units. The term
“Business Day” means any
day other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions are authorized or obligated by law to close in New York
City.
1.2 Over-Allotment
Option.
1.2.1. Option
Units. For the purposes of covering any over-allotments in
connection with the distribution and sale of the Firm Units, the Underwriters
are hereby granted, severally and not jointly, an option to purchase up to an
additional 750,000 units from the Company (“Over-Allotment Option”). Such
additional 750,000 units are hereinafter referred to as “Option Units.” The Firm Units
and the Option Units are hereinafter collectively referred to as the “Units,” and the Units, the
Ordinary Shares and the Warrants included in the Units are hereinafter referred
to collectively as the “Public
Securities.” The purchase price to be paid for the Option Units will be
the same price per Option Unit as the price per Firm Unit set forth in Section
1.1.1 hereof.
1.2.2. Exercise of
Option. The Over-allotment Option granted pursuant to Section
1.2.1 hereof may be exercised by the Representative as to all (at any time) or
any part (from time to time) of the Option Units within 45 days after the
Effective Date. The Underwriters will not be under any obligation to purchase
any Option Units prior to the exercise of the Over-allotment Option. The
Over-allotment Option granted hereby may be exercised by the giving of oral
notice to the Company by the Representative, which must be confirmed in writing
by overnight mail or facsimile or other electronic transmission setting forth
the number of Option Units to be purchased and the date and time for delivery of
and payment for the Option Units (the “Option Closing Date”), which
will not be later than five (5) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the
Representative, at the offices of Loeb or at such other place
(including remotely by facsimile or other electronic transmission) as shall be
agreed upon by the Company and the Representative. If such delivery and payment
for the Option Units does not occur on the Closing Date, the Option Closing Date
will be as set forth in the notice. Upon exercise of the Over-allotment Option,
the Company will become obligated to convey to the Underwriters, and, subject to
the terms and conditions set forth herein, the Underwriters will become
obligated to purchase, the number of Option Units specified in such
notice.
1.2.3. Payment and
Delivery. Payment for the Option Units will be made on the
Option Closing Date by wire transfer in Federal (same day) funds as follows:
$9.70 per Option Unit shall be deposited in the Trust Fund pursuant to the Trust
Agreement and the remaining proceeds shall be paid to the order of the Company
upon delivery to you of certificates (in form and substance satisfactory to the
Underwriters) representing the Option Units (or through the facilities of DTC)
for the account of the Underwriters. The Option Units shall be registered in
such name or names and in such authorized denominations as the Representative
may request in writing at least two (2) full Business Days prior to the Option
Closing Date. The Company shall not be obligated to sell or deliver the Option
Units except upon tender of payment by the Representative for applicable Option
Units.
1.3 Private Placement of
Warrants to Sponsor. Cazador Sub Holdings Ltd. (the “Sponsor” or the “Initial Shareholder”)
purchased from the Company pursuant to the Placement Warrant Purchase Agreement
(as defined in Section 2.23.2 hereof) an aggregate of 4,940,000 warrants
identical to the Warrants (the “Placement Warrants”) at a
purchase price of $0.50 per Placement Warrant in a private placement that
occurred immediately prior to the entering into of this agreement (the “Private Placement”). The
Placement Warrants and the Ordinary Shares issuable upon exercise of the
Placement Warrants are hereinafter referred to collectively as the “Placement
Securities.”
1.4 Representative’s Purchase
Option.
1.4.1. Purchase Option. The
Company hereby agrees to issue and sell to the Representative (and/or its
designees) on the Effective Date an option (“Representative’s Purchase
Option”) for the purchase of an aggregate of 250,000 units (“Representative’s Units”) for
an aggregate purchase price of $100. Each Representative Unit shall consist of
one Ordinary Share and one warrant (a “Representative Warrant”). Each
Representative Warrant shall entitle its holder to purchase one Ordinary Share
for $7.50 during the period commencing on the later of the consummation of a
Business Combination or one year from the Effective Date and ending on the later
of the Expiration Date or, if earlier redeemed by the Company, the Redemption
Date. The Representative’s Purchase Option in the form attached hereto as
Exhibit A shall be exercisable, in whole or in part, commencing on the later of
the consummation of a Business Combination or one year from the Effective Date
and expiring on the five-year anniversary of the Effective Date at an initial
exercise price per Representative’s Unit of $12.50, which is equal to one
hundred and ten percent (125%) of the initial public offering price of a Unit.
The Representative’s Purchase Option, the Representative’s Units, the
Representative Warrants and the Ordinary Shares issuable upon exercise of the
Representative Warrants are hereinafter referred to collectively as the “Representative’s Securities.”
The Public Securities and the Representative’s Securities are hereinafter
referred to collectively as the “Securities.” The
Representative understands and agrees that there are significant restrictions
pursuant to Rule 5110 of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) against
transferring the Representative’s Purchase Option and the underlying Shares
during the first year after the Effective Date and by its acceptance thereof
shall agree that it will not, sell, transfer, assign, pledge or hypothecate the
Representative’s Purchase Option, or any portion thereof, or be the subject of
any hedging, short sale, derivative, put or call transaction that would result
in the effective economic disposition of such securities for a period of one
year following the Effective Date to anyone other than (i) an Underwriter or a
selected dealer in connection with the Offering, or (ii) a bona fide officer or
partner of the Representative or of any such Underwriter or selected dealer; and
only if any such transferee agrees to the foregoing lock-up
restrictions.
1.4.2. Delivery and Payment.
Delivery and payment for the Representative’s Purchase Option shall be made on
the Closing Date . The Company shall deliver to the Representative,
upon payment therefore, certificates for the Representative’s Purchase Option in
the name or names and in such authorized denominations as the Representative may
request.
2. Representations and
Warranties of the Company. The Company represents and warrants
to the Underwriters as of the Applicable Time (as defined below), as of the
Closing Date and as of the Option Closing Date, if any, as follows:
2.1 Filing of Registration
Statement.
2.1.1. Pursuant to the
Act. The Company has filed with the Securities and Exchange
Commission (the “Commission”) a registration
statement on Form F-1 (File No. 333-______), and one or more amendments thereto,
and related preliminary prospectuses for the registration under the Act, of the
offering and sale of the Securities, which registration statement, as so amended
(including post-effective amendments, if any), has been declared effective by
the Commission and copies of which have heretofore been delivered to the
Underwriters. The conditions for use of Form F-1 to register the Offering under
the Act, as set forth in the General Instructions to such Form, have been
satisfied. The registration statement, as amended at the time it became
effective, including the prospectus, financial statements, schedules, exhibits
and other information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Act, is hereinafter
referred to as the “Registration Statement.” If
the Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional Securities of any type (a “Rule 462(b) Registration
Statement”), then, unless otherwise specified, any reference herein to
the term “Registration Statement” shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration
Statement, which, if filed, becomes effective upon filing, no other document
with respect to the Registration Statement has heretofore been filed with the
Commission. The offering and sale of all of the Securities have been registered
under the Securities Act pursuant to the Registration Statement or, if any Rule
462(b) Registration Statement is filed, will be duly registered under the Act
with the filing of such Rule 462(b) Registration Statement. The Company, if
required by the Securities Act and the rules and regulations of the Commission
(the “Regulations”),
proposes to file the Prospectus with the Commission pursuant to Rule 424(b)
under the Securities Act (“Rule
424(b)”). The prospectus, in the form in which it is to be filed with the
Commission pursuant to Rule 424(b), or, if the prospectus is not to be filed
with the Commission pursuant to Rule 424(b), the prospectus in the form included
as part of the Registration Statement at the time the Registration Statement
became effective, is hereinafter referred to as the “Prospectus,” except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule
424(b)), the term “Prospectus” shall also refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission pursuant to Rule 424 under the Act (including, without
limitation, the Sale Preliminary Prospectus (as hereinafter defined)) is
hereafter called a “Preliminary
Prospectus.” The prospectus, subject to completion, dated ________, 2010,
is hereinafter referred to as the “Sale Preliminary Prospectus.”
Any reference herein to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the exhibits and other
documents (if any) incorporated by reference therein pursuant to the Regulations
on or before the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be. Any
reference herein to the terms “amend”, “amendment” or “supplement” with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include: (i) the filing of any document under
the Securities Exchange Act of 1934, as amended (together with the Rules and
Regulations promulgated thereunder (the “Exchange Act”)), after the
effective date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference, and (ii) any such document so filed. All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“XXXXX”).
2.1.2. Pursuant to the Exchange
Act. The Company has filed with the Commission a Form 8-A
(File Number 000-___) providing for the registration under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), of the Units, the
Ordinary Shares and the Warrants. The registration of the Units, Ordinary Shares
and Warrants under the Exchange Act has been declared effective by the
Commission on the date hereof.
2.1.3. Registration under the
Exchange Act and Stock Exchange Listing. As of the Effective
Date, the Public Securities have been registered pursuant to Section 12(b) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and have been authorized for
listing on the Nasdaq Capital Market (“Nasdaq”), and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Public Securities under the Exchange Act or delisting the Public Securities
from Nasdaq, nor has the Company received any notification that the Commission
or Nasdaq is contemplating terminating such registration or listing except as
described in the Registration Statement and Prospectus.
2.2 No Stop Orders,
etc. Neither the Commission nor, to the best of the Company’s
knowledge, any state regulatory authority has issued any order or threatened to
issue any order preventing or suspending the use of any Preliminary Prospectus,
the Prospectus or the Registration Statement or has instituted or, to the best
of the Company’s knowledge, threatened to institute any proceedings with respect
to such an order.
2.3 Disclosures in Registration
Statement.
2.3.1. 10b-5
Representation. At the respective times the Registration
Statement, the Prospectus and any post-effective amendments thereto become
effective (and at the Closing Date and the Option Closing Date, if
any):
(i) The
Registration Statement, the Prospectus and any post-effective amendments thereto
did and will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in all material
respects conform to the requirements of the Act and the
Regulations.
(ii) Neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, on such dates, do or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. When any Preliminary Prospectus was first
filed with the Commission (whether filed as part of the Registration Statement
for the registration of the Securities or any amendment thereto or pursuant to
Rule 424(a) of the Regulations) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied or will have been corrected
in the Prospectus to comply with the applicable provisions of the Act and the
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The representation and warranty made
in this Section 2.3.1(ii) does not apply to statements made or statements
omitted in reliance upon and in conformity with written information furnished to
the Company with respect to the Underwriters by the Representative expressly for
use in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto.
2.3.2. Disclosure of
Agreements. The agreements and documents described in the
Prospectus, the Registration Statement conform to the descriptions thereof
contained therein and there are no agreements or other documents required by the
Act and the Regulations to be described in the Prospectus, the Registration
Statement or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or other
instrument (however characterized or described) to which the Company is a party
or by which it is or may be bound or affected and (i) that is referred to
in the Prospectus, or (ii) is material to the Company’s business, has been
duly authorized and validly executed by the Company, is in full force and effect
in all material respects and is enforceable against the Company and, to the
Company’s knowledge, the other parties thereto, in accordance with its terms,
except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally,
(y) as enforceability of any indemnification or contribution provision may
be limited under the federal and state securities laws, and (z) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefore may be brought. None of such
agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in
breach of default thereunder and, to the best of the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a breach or default thereunder. To the best of the
Company’s knowledge, performance by the Company of the material provisions of
such agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company or
any of its assets or businesses, including, without limitation, those relating
to environmental laws and regulations.
2.3.3. Prior Securities
Transactions. No securities of the Company have been sold by
the Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company since its
formation, except as disclosed in the Registration Statement.
2.3.4. Regulations. The
disclosures in the Registration Statement concerning the effects of Federal,
State, local and all foreign regulation on the Company’s business as currently
contemplated are correct in all material respects and do not omit to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
2.4 Changes After Dates in
Registration Statement.
2.4.1. No Material Adverse
Change. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
specifically stated therein: (i) there has been no material adverse change
in the condition, financial or otherwise, or business prospects of the Company;
(ii) there have been no material transactions entered into by the Company,
other than as contemplated pursuant to this Agreement; (iii) no member of
the Company’s board of directors or management has resigned from any position
with the Company and (iv) no event or occurrence has taken place which
materially impairs, or would likely materially impair, with the passage of time,
the ability of the members of the Company’s board of directors or management to
act in their capacities with the Company as described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus.
2.4.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, and
except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement and the Prospectus, the Company has not: (i) issued
any securities or incurred any liability or obligation, direct or contingent,
for borrowed money; or (ii) declared or paid any dividend or made any other
distribution on or in respect to its share capital.
2.5 Independent
Accountants. BDO USA, LLP (“BDO”), whose report is filed
with the Commission as part of the Registration Statement, are independent
registered public accountants as required by the Act and the Regulations.
BDO has not, during
the periods covered by the financial statements included in the Prospectus,
provided to the Company any non-audit services, as such term is used in Section
10A(g) of the Exchange Act.
2.6 Financial Statements,
etc. The financial statements, including the notes thereto and
supporting schedules included in the Registration Statement and Prospectus
fairly present the financial position, the results of operations and the cash
flows of the Company at the dates and for the periods to which they apply; and
such financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”), consistently applied
throughout the periods involved; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The Registration Statement discloses all material off-balance sheet
transactions, arrangements, obligations (including contingent obligations), and
other relationships of the Company with unconsolidated entities or other persons
that may have a material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues
or expenses. Except as disclosed in the Registration Statement and
the Prospectus, (a) the Company has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material transactions
other than in the ordinary course of business, (b) the Company has not declared
or paid any dividends or made any distribution of any kind with respect to its
share capital; (c) there has not been any change in the share capital of the
Company or any of its Subsidiaries or any grants under any stock compensation
plan and, (d) there has not been any material adverse change in the Company’s
long-term or short-term debt. There are no pro forma or as adjusted
financial statements which are required to be included in the Sale Preliminary
Prospectus and the Prospectus in accordance with Regulation S-X on Form 20-F
which have not been included as so required.
2.7 Authorized Capital; Options,
etc. The Company had, at the date or dates indicated in the
Prospectus, the duly authorized, issued and outstanding capitalization as set
forth in the Registration Statement and the Prospectus. Based on the assumptions
stated in the Registration Statement and the Prospectus, the Company will have
on the Closing Date the adjusted stock capitalization set forth therein. Except
as set forth in, or contemplated by, the Registration Statement and the
Prospectus, on the Effective Date and on the Closing Date, there will be no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued Ordinary Shares of the Company or any security
convertible into Ordinary Shares of the Company, or any contracts or commitments
to issue or sell Ordinary Shares or any such options, warrants, rights or
convertible securities.
2.8 Valid Issuance of
Securities, etc.
2.8.1. Outstanding
Securities. All issued and outstanding securities of the
Company issued prior to the transactions contemplated by this Agreement
(including, without limitation, the Placement Securities) have been duly
authorized and validly issued and are fully paid and non-assessable; the holders
thereof have no rights of rescission with respect thereto, and are not subject
to personal liability by reason of being such holders; and none of such
securities were issued in violation of the preemptive rights of any holders of
any security of the Company or similar contractual rights granted by the
Company. The authorized Ordinary Shares conform in all material respects to all
statements relating thereto contained in the Registration Statement and the
Prospectus. The offers and sales of the outstanding Ordinary Shares were at all
relevant times either registered under the Act and the applicable state
securities or Blue Sky laws or, based in part on the representations and
warranties of the purchasers of such Ordinary Shares, exempt from such
registration requirements.
2.8.2. Securities Sold Pursuant to
this Agreement. The Securities have been duly authorized for
issuance and sale and, when issued and paid for, will be validly issued, fully
paid and non-assessable; the holders thereof are not and will not be subject to
personal liability by reason of being such holders; the Securities are not and
will not be subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization, issuance and sale
of the Securities has been duly and validly taken. The Securities conform in all
material respects to all statements with respect thereto contained in the
Registration Statement. When paid for and issued, the
Representative’s Purchase Option, the Representative Warrants, and the Warrants
will constitute valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment of the respective exercise prices therefore,
the number and type of securities of the Company called for thereby in
accordance with the terms thereof and such Representative’s Purchase Option, the
Representative’s Warrants, and Warrants are enforceable against the Company in
accordance with their respective terms, except (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under the federal and state securities
laws; and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought. The Ordinary Shares issuable upon exercise of the Warrants
and the Representative Warrants have been reserved for issuance upon the
exercise of the Warrants and the Representative Warrants and, when issued in
accordance with the terms of the Warrants and the Representative Warrants, as
the case may be, will be duly and validly authorized, validly issued, fully paid
and non-assessable, and the holders thereof are not and will not be subject to
personal liability by reason of being such holders. The underlying Ordinary
Shares are not and will not be subject to the preemptive rights of any holders
of any security of the Company or similar contractual rights granted by the
Company; and all corporate action required to be taken for the authorization,
issuance and sale of the Representative’s Purchase Option, the Warrants and the
Representative’s Warrants has been duly and validly taken.
2.8.3. Placement Warrants.
The Placement Warrants constitute valid and binding obligations of the Company
to issue and sell, upon exercise thereof and payment of the respective exercise
prices therefore, the number and type of securities of the Company called for
thereby in accordance with the terms thereof, and such Placement Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought. The Ordinary Shares issuable
upon exercise of the Placement Warrants have been reserved for issuance upon the
exercise of the Placement Warrants and, when issued in accordance with the terms
of the Placement Warrants, will be duly and validly authorized, validly issued,
fully paid and non-assessable, and the holders thereof are not and will not be
subject to personal liability by reason of being such holders. The
Company has received payment for the Placement Warrants.
2.8.4. No Integration.
Neither the Company nor any of its affiliates has, prior to the date hereof,
made any offer or sale of any securities which are required to be “integrated”
pursuant to the Act or the Regulations with the offer and sale of the Securities
pursuant to the Registration Statement.
2.9 Registration Rights of Third
Parties. Except as set forth in the Registration Statement and
the Prospectus, no holders of any securities of the Company or any rights
exercisable for or convertible or exchangeable into securities of the Company
have the right to require the Company to register any such securities of the
Company under the Act or to include any such securities in a registration
statement to be filed by the Company.
2.10 Validity and Binding Effect
of Agreements. This Agreement, the Representative’s Purchase
Option, the Warrant Agreement (as defined in Section 2.21 hereof), the Trust
Agreement, the Services Agreement (as defined in Section 3.17.2 hereof) the
Placement Warrant Purchase Agreement (as defined in Section 2.22.2 hereof) and
the Escrow Agreement (as defined in Section 2.22.3 hereof) have been duly and
validly authorized by the Company, and, when executed and delivered, will
constitute, the valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and
(iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought.
2.11 No Conflicts,
etc. The execution, delivery, and performance by the Company
of this Agreement, the Representative’s Purchase Option, the Warrant Agreement,
the Trust Agreement, the Services Agreement, the Placement Warrant Purchase
Agreement and the Escrow Agreement and all ancillary documents, the consummation
by the Company of the transactions herein and therein contemplated and the
compliance by the Company with the terms hereof and thereof do not and will not,
with or without the giving of notice or the lapse of time or both:
(i) result in a breach of, or conflict with any of the terms and provisions
of, or constitute a default under, or result in the creation, modification,
termination or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement or instrument to
which the Company is a party except pursuant to the Trust Agreement referred to
in Section 2.23 hereof; (ii) result in any violation of the provisions of
the amended and restated Memorandum and Articles of Association of the Company
(as the same may be amended from time to time, the “Memorandum and Articles of
Association”); or (iii) violate any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties or business constituted as of the date hereof.
2.12 No Defaults;
Violations. No material default exists in the due performance
and observance of any term, covenant or condition of any material license,
contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or
any other agreement or instrument evidencing an obligation for borrowed money,
or any other material agreement or instrument to which the Company is a party or
by which the Company may be bound or to which any of the properties or assets of
the Company is subject. The Company is not in violation of any term or provision
of its Memorandum and Articles of Association, or in violation of any material
franchise, license, permit, applicable law, rule, regulation, judgment or decree
of any governmental agency or court, domestic or foreign, having jurisdiction
over the Company or any of its properties or businesses.
2.13 Corporate Power; Licenses;
Consents.
2.13.1. Conduct of
Business. The Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and
bodies that it needs as of the date hereof to conduct its business purpose as
described in the Prospectus. The disclosures in the Registration Statement
concerning the effects of federal, state, local and foreign regulation on this
Offering and the Company’s business purpose as currently contemplated are
correct in all material respects. The Company has not carried on any
business activity since its formation except as described in the Registration
Statement and Prospectus.
2.13.2. Transactions Contemplated
Herein. The Company has all requisite corporate power and
authority to enter into this Agreement and to carry out the provisions and
conditions hereof, and all consents, authorizations, approvals and orders
required in connection therewith have been obtained. No consent, authorization
or order of, and no filing with, any court, government agency or other body is
required for the valid issuance, sale and delivery of the Securities and the
consummation of the transactions and agreements contemplated by this Agreement,
the Warrant Agreement, the Representative’s Purchase Option, the Trust
Agreement, the Services Agreement, the Placement Warrant Purchase Agreement and
the Escrow Agreement and as contemplated by
the Prospectus, except with respect to applicable federal and state securities
laws and the rules and regulations of FINRA.
2.14 D&O
Questionnaires. To the Company’s knowledge, all information
contained in the questionnaires (the “Questionnaires”) completed by each of the
Company’s directors, officers and shareholders immediately prior to the Offering
(the “Insiders”) and
provided to the Representative as an exhibit to his or her Insider Letter (as
defined in Section 2.22.1) is true and correct in all respects and the Company
has not become aware of any information which would cause the information
disclosed in the questionnaires completed by each Insider to become inaccurate
and incorrect.
2.15 Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or, to
the Company’s knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any executive officer or director which has not been
disclosed in the Registration Statement, the Questionnaires or the Prospectus or
in connection with the Company’s listing application for the listing of the
Shares on NASDAQ.
2.16 Good
Standing. The Company has been duly organized and is validly
existing as a Cayman Islands exempted company and is in good standing under the
laws of the Cayman Islands as of the date hereof, and is duly qualified to do
business and is in good standing in each jurisdiction in which its ownership or
lease of property or the conduct of business requires such qualification, except
where the failure to qualify would not have a material adverse effect on the
assets, business or operations of the Company.
2.17 Stop
Orders. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or any part
thereof.
2.18 Transactions Affecting
Disclosure to FINRA.
2.18.1. Finder’s
Fees. Except as described in the Registration Statement 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
Insider with respect to the sale of the Securities hereunder or any other
arrangements, agreements or understandings of the Company or, to the Company’s
knowledge, any of its shareholders that may affect the Underwriters’
compensation, as determined by FINRA.
2.18.2. Payments Within Twelve
Months. The Company has not made any direct or indirect
payments (in cash, securities or otherwise) to: (i) any person, as a
finder’s fee, consulting fee or otherwise, in consideration of such person
raising capital for the Company or introducing to the Company persons who raised
or provided capital to the Company; (ii) to any FINRA member; or
(iii) to any person or entity that has any direct or indirect affiliation
or association with any FINRA member, within the twelve months prior to the
Effective Date, other than the prior payment of $25,000 to the Representative,
and payment to the Underwriters as provided hereunder in connection with the
Offering.
2.18.3. Use of
Proceeds. None of the net proceeds of the Offering will be
paid by the Company to any participating FINRA member or its affiliates, except
as specifically authorized herein.
2.18.4. FINRA
Affiliation. No officer, director or any beneficial owner of
the Company’s unregistered securities has any direct or indirect affiliation or
association with any FINRA member (as determined in accordance with the rules
and regulations of FINRA). The Company will advise the Representative and
Loeb if it learns
that any officer, director or owner of at least 5% of the Company’s outstanding
Shares (or securities convertible into Shares) is or becomes an affiliate or
associated person of a FINRA member participating in the Offering.
2.18.5. No
Company Affiliate is an owner of ordinary shares or other securities of any
member of FINRA (other than securities purchased on the open
market).
2.18.6. No
affiliate of the Company has made a subordinated loan to any member of
FINRA.
2.18.7. No
proceeds from the sale of the Securities or the Placement Securities will be
paid to any FINRA member, or any persons associated or affiliated with a member
of FINRA, except as specifically authorized herein and the Placement Warrant
Purchase Agreement.
2.18.8. The
Company has not issued any warrants or other securities, or granted any options,
directly or indirectly, to anyone who is a potential underwriter in the Offering
or a related person (as defined by FINRA rules) of such an underwriter within
the 180-day period prior to the initial filing date of the Registration
Statement.
2.18.9. No
person to whom securities of the Company have been privately issued within the
180-day period prior to the initial filing date of the Registration Statement
has any relationship or affiliation or association with any member of
FINRA.
2.18.10. No FINRA
member intending to participate in the Offering has a conflict of interest with
the Company. For this purpose, a “conflict of interest” exists when a member of
FINRA and/or its associated persons, parent or affiliates in the aggregate
beneficially own 10% or more of the Company’s outstanding subordinated debt or
common equity, or 10% or more of the Company’s preferred equity. “Members
participating in the Offering” include managing agents, syndicate group members
and all dealers which are members of FINRA.
2.18.11. The Company
has not entered into any agreement or arrangement (including, without
limitation, any consulting agreement or any other type of agreement) during the
180-day period prior to the initial filing date of the Registration Statement,
which arrangement or agreement provides for the receipt of any item of value
and/or the transfer of any warrants, options, or other securities from the
Company to a FINRA member, any person associated with a member (as defined by
FINRA rules), any potential underwriters in the Offering and/or any related
persons, other than the arrangements the Company has entered into with Xxxxxx in
connection with the Offering and the Private Placement.
2.19 Foreign Corrupt Practices
Act. Neither the Company nor any of the directors, employees
or officers of the Company or any other person acting on behalf of the Company
has, directly or indirectly, given or agreed to give any money, gift or similar
benefit (other than legal price concessions to customers in the ordinary course
of business) to any customer, supplier, employee or agent of a customer or
supplier, or official or employee of any governmental agency or instrumentality
of any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who was, is, or may be in a
position to help or hinder the business of the Company (or assist it in
connection with any actual or proposed transaction) that (i) might subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a
material adverse effect on the assets, business or operations of the Company as
reflected in any of the financial statements contained in the Prospectus or
(iii) if not continued in the future, might adversely affect the assets,
business, operations or prospects of the Company. The Company has taken
reasonable steps to ensure that its accounting controls and procedures are
sufficient to cause the Company to comply in all material respects with the
Foreign Corrupt Practices Act of 1977, as amended.
2.20 Officers’
Certificate. Any certificate signed by any duly authorized
officer of the Company, in connection with the Offering, and delivered to you or
to Loeb shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
2.21 Warrant Agreement.
The Company has entered into a warrant agreement with respect to the Warrants,
the Placement Warrants and the Representative’s Warrants with Continental Stock
Transfer & Trust Company substantially in the form filed as an exhibit to
the Registration Statement (“Warrant
Agreement”).
2.22 Agreements With
Insiders.
2.22.1. Letters. The Company
has caused to be duly executed legally binding and enforceable agreements
(except (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (ii) as
enforceability of any indemnification, contribution or noncompete provision may
be limited under the federal and state securities laws, and (iii) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefore may be brought) forms of which are
annexed as Exhibit 10.1 and 10.2 to the Registration Statement (“Insider Letter”), pursuant to
which the Insiders of the Company agree to certain matters, including but not
limited to, certain matters described as being agreed to by them under the
“Proposed Business” section of the Prospectus.
2.22.2. Placement Warrant Purchase
Agreement. The sponsor has executed and delivered an agreement, annexed
as Exhibit 10.7 of the Registration Statement (the “Placement Agent Warrant
Agreement”), pursuant to which the Sponsor, among other things, has
purchased an aggregate of 4,940,000 Placement Warrants in the Private
Placement. Pursuant to the Placement Warrants Purchase Agreement, (i)
the proceeds from the sale of the Placement Warrants will be deposited by the
Company in the Trust Fund in accordance with the terms of the Trust Agreement
prior to the Closing, and (ii) the purchasers of the Placement Warrants have
waived any and all rights and claims that they may have to any proceeds, and any
interest thereon, held in the Trust in respect of the Ordinary Shares issuable
upon exercise of such Placement Warrants in the event that a Business
Combination is not consummated and the Trust Fund is liquidated in accordance
with the terms of the Trust Agreement.
2.22.3. Escrow Agreement. The
Company has caused the Initial Shareholder to enter into an escrow agreement
(“Escrow Agreement”)
with Continental Stock Transfer & Trust Company (“Escrow Agent”), substantially
in the form annexed as Exhibit 10.10 to the Registration Statement, whereby the
Ordinary Shares owned by the Initial Shareholder will be held in escrow by the
Escrow Agent, until the date which is one year from the date on which the
Company consummates its initial Business Combination, or earlier (i) with
respect to 50% of the Sponsor Shares (as defined in the Insider Letter),
subsequent to a Business Combination, the last sales price of the Company’s
Ordinary Shares exceeds $11.50 per share for any 20 trading days within any
30-trading day period following the consummation of a Business Combination, (ii)
with respect to 50% of the Sponsor Shares if, subsequent to a Business
Combination, the last sales price of the Company’s Ordinary Shares exceeds
$15.00 share for any 20 trading days within any 30-trading day period following
the consummation of the a Business Combination, or (iii) with respect to all of
the Sponsor Shares, if following a Business Combination, the Company consummates
a subsequent liquidation, merger, amalgamation, share capital exchange, share
purchase, reorganization or other similar business transaction which results in
all of the Company’s shareholders having the right to exchange their Ordinary
Shares for cash, securities or other property. During such escrow
period, the Initial Shareholder shall be prohibited from selling or otherwise
transferring such shares (except by gift to a member of the Initial
Shareholder’s immediate family or to a trust or other entity, the beneficiary of
which is a member of the Initial Shareholder’s immediate family, by virtue of
the laws of descent and distribution upon the death of the Initial Shareholder
or as otherwise set forth in the Escrow Agreement), but will retain the right to
vote such shares and receive any distributions with respect to such shares. To
the Company’s knowledge, the Escrow Agreement is enforceable against the Initial
Shareholder and will not, with or without the giving of notice or the lapse of
time or both, result in a breach of, or conflict with any of the terms and
provisions of, or constitute a default under, any agreement or instrument to
which the Initial Shareholder is a party. The Escrow Agreement shall not be
amended, modified or otherwise changed without the prior written consent of the
Representative.
2.23 Investment Management Trust
Agreement. The Company has entered into the Trust Agreement with respect
to certain proceeds of the Offering substantially in the form annexed as Exhibit
10.8 to the Registration Statement.
2.24 Subsidiaries. The
Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other entity.
2.25 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, customer or supplier of the
Company or any affiliate of the Company, on the other hand, which is required by
the Act, the Exchange Act or the Regulations to be described in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus which is not so
described and described as required. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus. The Company has not extended or
maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any director or officer of
the Company.
2.26 Board of
Directors. As of the Effective Date, the Board of Directors of
the Company will be comprised of the persons set forth under the heading of the
Prospectus captioned “Management.” As of the Effective Date, the qualifications
of the persons serving as board members and the overall composition of the board
will comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated
thereunder applicable to the Company and the rules of Nasdaq. As of the
Effective Date, at least one member of the Board of Directors of the Company
will qualify as a “financial expert” as such term is defined under the
Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated thereunder and the rules of
Nasdaq. In addition, as of the Effective Date, at least a majority of the
persons serving on the Board of Directors will qualify as “independent” as
defined under the rules of Nasdaq.
2.27 Xxxxxxxx-Xxxxx
Compliance. The Company is, or on the Effective Date will be,
in material compliance with the provisions of the Xxxxxxxx-Xxxxx Act of 2002
applicable to it, and has implemented or will implement such programs and taken
reasonable steps to ensure the Company’s future compliance (not later than the
relevant statutory and regulatory deadlines therefore) with all the material
provisions of the Xxxxxxxx-Xxxxx Act of 2002.
2.28 No Investment Company
Status. The Company is not and, after giving effect to the
Offering and sale of the Firm Units and the application of the proceeds thereof
as described in the Registration Statement and the Prospectus, will not be, an
“investment company” as defined in the Investment Company Act of 1940, as
amended (the “Investment
Company Act”).
2.29 Investments. No more
than 45% of the “value” (as defined in Section 2(a)(41) of the Investment
Company Act) of the Company’s total assets consist of, and no more than 45% of
the Company’s net income after taxes is derived from, securities other than
“Government securities” (as defined in Section 2(a)(16) of the Investment
Company Act).
2.30 Taxes The
Company has filed all returns (as hereinafter defined) required to be filed with
taxing authorities prior to the date hereof or has duly obtained extensions of
time for the filing thereof. Each of the Company and its Subsidiaries
has paid all taxes (as hereinafter defined) shown as due on such returns that
were filed and has paid all taxes imposed on or assessed against the Company or
such respective subsidiary. The provisions for taxes payable, if any,
shown on the financial statements filed with or as part of the Registration
Statement are sufficient for all accrued and unpaid taxes, whether or not
disputed, and for all periods to and including the dates of such consolidated
financial statements. Except as disclosed in writing to the
Underwriters, (i) no issues have been raised (and are currently pending) by any
taxing authority in connection with any of the returns or taxes asserted as due
from the Company or its Subsidiaries, and (ii) no waivers of statutes of
limitation with respect to the returns or collection of taxes have been given by
or requested from the Company or its Subsidiaries. The term “taxes” mean all
federal, state, local, foreign, and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees, assessments, or charges of any kind whatever, together with any
interest and any penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all
returns, declarations, reports, statements, and other documents required to be
filed in respect to taxes.
2.31 Covenants Not to
Compete. The Initial Shareholder is not, and no employee, officer or
director of the Company is, subject to any noncompetition agreement or
non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be an initial shareholder, employee, officer
and/or director of the Company.
2.32 No Contemplation of a
Business Combination. Prior to the date hereof, neither the
Company, its officers and directors nor the Initial Shareholder had, and as of
the Closing, the Company and such officers and directors and Initial Shareholder
will not have had: (i) any specific Business Combination under consideration or
contemplation; or (ii) any discussions with any target business regarding a
possible Business Combination.
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3.
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Covenants of the
Company. The Company covenants and agrees as
follows:
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3.1
Amendments to Registration
Statement. The Company will deliver to the Representative,
prior to filing, any amendment or supplement to the Registration Statement or
Prospectus proposed to be filed after the Effective Date and not file any such
amendment or supplement to which the Representative shall reasonably object in
writing.
3.2 Federal Securities
Laws.
3.2.1. Compliance. During
the time when a Prospectus is required to be delivered under the Act, the
Company will use its best efforts to comply with all requirements imposed upon
it by the Act, the Regulations and the Exchange Act and by the regulations under
the Exchange Act, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Public Securities in accordance
with the provisions hereof and the Prospectus. If at any time when a Prospectus
relating to the Public Securities is required to be delivered under the Act, any
event shall have occurred as a result of which, in the opinion of counsel for
the Company or counsel for the Underwriters, the Prospectus, as then amended or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company will notify the Representative promptly and
prepare and file with the Commission, subject to Section 3.1 hereof, an
appropriate amendment or supplement in accordance with Section 10 of the
Act.
3.2.2. Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Representative) with the Commission pursuant to
the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act
Registration. For a period of five years from the Effective
Date, or until such earlier time upon which the Company is required to be
liquidated or is acquired in a transaction approved by the requisite number of
shareholders, the Company will use its best efforts to maintain the registration
of the Units, Ordinary Shares and Warrants under the provisions of the Exchange
Act and, the Company will not deregister the Units, Ordinary Shares and Warrants
under the Exchange Act without the prior written consent of the
Representative.
3.2.4. Free Writing
Prospectuses. The Company represents and agrees that it has
not made and will not make any offer relating to the Public Securities that would constitute an
issuer free writing prospectus, as defined in Rule 433 under the 1933 Act,
without the prior consent of the Representative. Any such free writing
prospectus consented to by the Representative is hereinafter referred to as a
“Permitted Free Writing
Prospectus.” The Company represents that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and has complied with and will comply with the applicable requirements
of Rule 433 of the 1933 Act, including timely Commission filing where required,
legending and record keeping.
3.3 Delivery to the Underwriters
of Prospectuses. The Company will deliver to each of the
Underwriters, without charge, from time to time during the period when the
Prospectus is required to be delivered under the Act or the Exchange Act such
number of copies of each Preliminary Prospectus and the Prospectus as such
Underwriters may reasonably request and, as soon as the Registration Statement
or any amendment or supplement thereto becomes effective, deliver to you two
original executed Registration Statements, including exhibits, and all
post-effective amendments thereto and copies of all exhibits filed therewith or
incorporated therein by reference and all original executed consents of
certified experts.
3.4 Effectiveness and Events
Requiring Notice to the Representative. The Company will use
its best efforts to cause the Registration Statement to remain effective and
will notify the Representative immediately and confirm the notice in writing:
(i) of the effectiveness of the Registration Statement and any amendment
thereto; (ii) of the issuance by the Commission of any stop order or of the
initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any state securities commission of any proceedings
for the suspension of the qualification of the Securities for offering or sale
in any jurisdiction or of the initiation, or the threatening, of any proceeding
for that purpose; (iv) of the mailing and delivery to the Commission for
filing of any amendment or supplement to the Registration Statement or
Prospectus; (v) of the receipt of any comments or request for any
additional information from the Commission; and (vi) of the happening of
any event during the period described in this Section 3.4 hereof that, in the
judgment of the Company, makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Commission or any state securities commission shall enter
a stop order or suspend such qualification at any time, the Company will make
every reasonable effort to obtain promptly the lifting of such
order.
3.5 Review of Financial
Statements. Until the earlier of five years from the Effective
Date, or until such earlier time upon which the Company is required to be
liquidated and dissolved, the Company, at its expense, shall cause its regularly
engaged independent certified public accountants to review (but not audit) the
Company’s financial statements for each of the first three fiscal quarters,
prior to the furnishing of such information on a Report of Foreign
Private Issuer on Form 6-K or on Form 10-Q. The Form 6-K or 10-Q, as
the case may be, shall include, at minimum, financial statements and a
management’s discussion and analysis of financial results prepared in accordance
with the requirements of Form 10-Q.
3.6 Xxxxxxxx-Xxxxx
Compliance. As soon as it is legally required to do so, the Company shall
take all actions necessary to obtain and thereafter maintain material compliance
with each applicable provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated thereunder and related or similar rules and
regulations promulgated by any other governmental or self regulatory entity or
agency with jurisdiction over the Company.
3.7 Financial Public Relations
Firm. Promptly after the execution of a definitive agreement
for a Business Combination, the Company shall retain a financial public
relations firm reasonably acceptable to, but not affiliated with, the
Representative, and the Company shall retain such firm or another firm
reasonably acceptable to the Representative for a period of not less than five
(5) years, subject to earlier termination in the event the Company is
liquidated.
3.8 Reports to the
Representative.
3.8.1. Periodic Reports,
etc. For a period of five years following the Effective Date
or until such earlier time upon which the Company is required to liquidate the
Trust Account, the Company will furnish to the Representative (Attn:
[ ]) and
its counsel copies of such financial statements and other periodic and special
reports as the Company from time to time furnishes generally to holders of any
class of its securities and also promptly furnish to the Representative: (i) a
copy of every press release and every news item and article with respect to the
Company or its affairs which was released by the Company; (ii) a copy of each
Schedule 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company; and (iii)
five copies of each registration statement filed by the Company under the Act.
In addition, upon the Representative’s request, the Company shall furnish the
Representative (i) a copy of monthly statements, if any, setting forth such
information regarding the Company’s results of operations and financial position
(including balance sheet, profit and loss statements and data regarding
outstanding purchase orders) as is regularly prepared by management of the
Company; and (ii) such additional documents and information with respect to the
Company and the affairs of any future Subsidiaries of the Company as the
Representative may from time to time reasonably request; provided that the
Representative shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and Loeb in connection with the Representative’s receipt of such
information. Documents filed with the Commission pursuant to its XXXXX system
shall be deemed to have been delivered to the Representative pursuant to this
Section.
3.8.2. Transfer
Sheets. For a period of three (3) years from the Effective
Date or until such earlier time upon which the Company is required to be
liquidated, the Company shall retain a transfer and warrant agent acceptable to
the Representative (the “Transfer Agent”) and will
furnish to the Representative at the Company’s sole cost and expense such
transfer sheets of the Company’s securities as the Representative may reasonably
request, including the daily and monthly consolidated transfer sheets of the
Transfer Agent and DTC. The Representative acknowledges that
Continental Stock Transfer & Trust Company is an acceptable Transfer
Agent.
3.9 Payment of
Expenses. The
Company hereby agrees to pay on each of the Closing Date and the Option Closing
Date, if any, to the extent not paid at the Closing Date, all expenses incident
to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses
relating to the registration of the Shares to be sold in the Offering (including
the Over-allotment Shares) with the Commission; (b) all COBRADesk filing fees
associated with the review of the Offering by FINRA; all fees and expenses
relating to the listing of such Shares on Nasdaq or such other stock exchanges
as the Company and the Representative together determine; (c) all fees, expenses
and disbursements relating to background checks of the Company’s
officers and directors in an amount not to exceed $5,000 per individual; (d) all
fees, expenses and disbursements relating to the registration, qualification or
exemption of such Shares under the securities laws of such foreign jurisdictions
as the Representative may reasonably designate; (e) the costs of all mailing and
printing of the underwriting documents (including, without limitation, the
Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement
Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and
Power of Attorney), Registration Statements, Prospectuses and all amendments,
supplements and exhibits thereto and as many preliminary and final Prospectuses
as the Representative may reasonably deem necessary, (f) the costs and expenses
of the public relations firm referred to in Section 3.7 hereof; (g) the costs of
preparing, printing and delivering certificates representing the Units; (h) fees
and expenses of the transfer agent for the Ordinary Shares; (i) stock transfer
and/or stamp taxes, if any, payable upon the transfer of securities from the
Company to the Underwriters; (j) the costs associated with post-Closing
advertising of the Offering in the national editions of the Wall Street Journal
and New York Times which shall be done at the sole discretion of the Company;
(k) the costs associated with bound volumes of the public offering materials,
each of which the Company or its designee will provide within a reasonable time
after the Closing in such reasonable quantities as the Representative may
reasonably request; (l) the fees and expenses of the Company’s accountants; (m)
the fees and expenses of the Company’s legal counsel and other agents and
representatives; (n) up to $50,000 (including the $25,000 advance provided to
the Representative) to cover the Representative’s actual “road show” expenses
for the Offering, which invoices evidencing such expenses shall be provided to
the Company at least five (5) business days prior to the Closing and (o) all
other costs and expenses customarily borne by an issuer incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 3.9. The Representative may also deduct from the
net proceeds of the Offering payable to the Company on the Closing Date, or the
Option Closing Date, if any, the expenses set forth herein to be paid by the
Company to the Representative.
3.10 Application of Net
Proceeds. The Company will apply the net proceeds from the
Offering and the Private Placement received by it in a manner consistent with
the application described under the caption “Use of Proceeds” in the
Prospectus.
3.11 Delivery of Earnings
Statements to Security Holders. The Company will make
generally available to its security holders as soon as practicable, but not
later than the first day of the fifteenth full calendar month following the
Effective Date, an earnings statement (which need not be certified by
independent public or independent certified public accountants unless required
by the Act or the Regulations, but which shall satisfy the provisions of Rule
158(a) under Section 11(a) of the Act) covering a period of at least twelve
consecutive months beginning after the Effective Date.
3.12 Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Representative) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.13 Internal
Controls. The Company will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary in
order to permit preparation of financial statements in accordance with GAAP and
to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
3.14 Accountants. As
of the Effective Date, the Company shall retain an independent public
accountants reasonably acceptable to the Representative, and the Company shall
continue to retain a nationally recognized independent certified public
accounting firm for a period of at least five years after the Effective
Date. The Representative acknowledges that BDO is acceptable to the
Representative.
3.15 FINRA. The
Company shall advise the Representative (who shall make an appropriate filing
with FINRA) if it is aware that any 5% or greater shareholder of the Company
becomes an affiliate or associated person of an FINRA member participating in
the distribution of the Company’s Public Securities.
3.16 No Fiduciary
Duties. The Company acknowledges and agrees that the
Underwriters’ responsibility to the Company is solely contractual in nature and
that none of the Underwriters or their affiliates or any Selling Agent shall be
deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary
duty to the Company or any of its affiliates in connection with the Offering and
the other transactions contemplated by this Agreement.
3.17 Affiliated
Transactions.
3.17.1. Business
Combinations. The Company will not consummate a Business Combination with
any entity which is affiliated with the Initial Shareholder or its affiliates
unless the Company obtains an opinion from an independent investment banking
firm that the Business Combination is fair to the Company’s shareholders from a
financial perspective.
3.17.2. Affiliate
Compensation. Except as set forth above in this Section 3.17.2, the
Company shall not pay the Initial Shareholder or any of its affiliates any fees
or compensation from the Company, for services rendered to the Company prior to,
or in connection with, the consummation of a Business Combination; provided that
the Insiders shall be entitled to reimbursement from the Company for their
reasonable out-of-pocket expenses incurred in connection with seeking and
consummating a Business Combination. Notwithstanding the foregoing to
the contrary, the Company may pay the Initial Shareholder or any of its
affiliates fees or compensation in connection with bona fide services to be
rendered to the Company pursuant to the services agreement between the Company
and Arco Capital Management LLC filed as Exhibit 10.4 to the Registration
Statement (the “Services
Agreement”).
3.18 Disqualification of Form F-1
or S-1. For a period equal to seven years from the date hereof, or until
such earlier time upon which the Company is required to be liquidated, the
Company will not take any action or actions which may prevent or disqualify the
Company’s use of Form F-1 or Form S-1 (or other appropriate form) for the
registration of the Warrants and the Representative’s Warrants under the
Act.
3.19 Notice to FINRA. In
the event any person or entity (regardless of any FINRA affiliation or
association) is engaged to assist the Company in its search for a merger
candidate or to provide any other merger and acquisition services, the Company
will provide the following to FINRA and to the Representative prior to the
consummation of the Business Combination: (i) complete details of all services
and copies of agreements governing such services; and (ii) justification as to
why the person or entity providing the merger and acquisition services should
not be considered an “underwriter and related person” with respect to the
Company’s initial public offering, as such term is defined in Rule 5110 of
FINRA’s Conduct Rules. The Company also agrees that proper disclosure of such
arrangement or potential arrangement will be made in the proxy statement which
the Company will file for purposes of soliciting stockholder approval for the
Business Combination.
3.20 Form 6-K or Form 8-K.
The Company shall, on the date hereof, retain its independent public accountants
to audit the financial statements of the Company as of the Closing Date (“Audited Financial Statements”)
that reflect the receipt by the Company of the proceeds of the initial public
offering. As soon as the Audited Financial Statements become available, the
Company shall immediately file a Current Report on Form 6-K or Form 8-K with the
Commission, which Report shall contain the Company’s Audited Financial
Statements.
3.21 Corporate
Proceedings. All corporate proceedings and other legal matters necessary
to carry out the provisions of this Agreement and the transactions contemplated
hereby shall have been done to the reasonable satisfaction to counsel for the
Representative.
3.22 Investment Company.
The Company shall cause the proceeds of the Offering to be held in the Trust
Fund to be invested only in “government securities” (as defined in Section
2(a)(16) of the Investment Company Act) with specific maturity dates as set
forth in the Trust Agreement and disclosed in the Prospectus or money market
funds meeting certain conditions under Rule 2a-7 promulgated under the
Investment Company Act of 1940. The Company will otherwise conduct its business
in a manner so that it will not become subject to the Investment Company
Act. Furthermore, once the Company consummates a Business
Combination, it shall be engaged in a business other than that of investing,
reinvesting, owning, holding or trading securities.
3.23 Business Combination
Announcement. Within five business days following the consummation by the
Company of a Business Combination, the Company shall cause an announcement
(“Business Combination
Announcement”) to be placed, at its cost, in The Wall Street Journal.
Such announcement shall describe the consummation of the Business Combination
and indicate that the Representative was the managing underwriter in the
Offering. The Company shall supply the Representative with a draft of the
Business Combination Announcement and provide the Representative with a
reasonable opportunity to comment thereon. The Company will not place the
Business Combination Announcement without the final approval of the
Representative, which such approval will not be unreasonably
withheld.
3.24 Colorado Trust
Filing. In the event the Securities are registered in the State of
Colorado, the Company will cause a Colorado Form ES to be filed with the
Commissioner of the State of Colorado no less than 10 days prior to the
distribution of the Trust Fund in connection with a Business Combination and
will do all things necessary to comply with Section 00-00-000 and Rule 51-3.4 of
the Colorado Securities Act.
3.25 Press Releases. The
Company will not issue press releases or engage in any other publicity, without
Xxxxxx’x prior written consent, for a period ending at 5:00 p.m., New York City
time, on the first Business Day following the fortieth (40th) day following the
Closing Date.
3.26 Electronic
Prospectus. The Company shall cause to be prepared and delivered to the
Representative, at the Company’s expense, within one Business Day from the
effective date of this Agreement, an Electronic Prospectus to be used by the
Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a
form of prospectus, and any amendment or supplement thereto, that meets each of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representative, that may be transmitted electronically by
the Underwriters to offerees and purchasers of the Securities for at least the
period during which a prospectus relating to the Securities is required to be
delivered under the Securities Act; (ii) it shall disclose the same information
as the paper prospectus and prospectus filed pursuant to XXXXX, except to the
extent that graphic and image material cannot be disseminated electronically, in
which case such graphic and image material shall be replaced in the electronic
prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or
convertible into a paper format or an electronic format, satisfactory to the
Representative, that will allow recipients thereof to store and have
continuously ready access to the prospectus at any future time, without charge
to such recipients (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to XXXXX or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt of a request by an investor
or his or her representative within the period when a prospectus relating to the
Securities is required to be delivered under the Securities Act, the Company
shall transmit or cause to be transmitted promptly, without charge, a paper copy
of the Prospectus.
3.27 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 Securities outstanding from time to time.
3.28 Private Placement
Proceeds. Prior to the Closing, the Company shall deposit all of the net
proceeds from the Private Placement in the Trust Fund ($2,470,000) and shall
provide the Representative with evidence of the same.
3.29
NASDAQ.
The Company will use its best efforts to maintain the quotation of the Public
Securities on NASDAQ or a national securities exchange acceptable to the
Representative for a period of at least three (3) years from the date of this
Agreement, unless the Company fails to consummate a Business Combination and is
required to liquidate its assets pursuant to its Memorandum and Articles of
Association.
4. Conditions of Underwriters’
Obligations. The obligations of the Underwriters to purchase
and pay for the Units, as provided herein, shall be subject to (i) the
continuing accuracy of the representations and warranties of the Company as of
the date hereof and as of each of the Closing Date and the Option Closing Date,
if any; (ii) the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof; (iii) the performance by the Company of its
obligations hereunder and (iv) the following conditions:
4.1 Regulatory
Matters.
4.1.1. Effectiveness of
Registration Statement. The Registration Statement shall have
become effective not later than 5:00 P.M., Eastern time, on the date of this
Agreement or such later date and time as shall be consented to in writing by
you, and, at each of the Closing Date and the Option Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be pending or contemplated by the Commission and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Loeb.
4.1.2. FINRA
Clearance. By the Effective Date, the Representative shall
have received clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriters as described in the Registration
Statement.
4.1.3. Nasdaq
Clearance. On the Closing Date and the Option Closing Date,
the Company’s Public Securities shall have been approved for listing on
Nasdaq.
4.1.4. No Commission Stop
Order. As of either on the Closing Date or the Option Closing Date, the
Commission has not issued any order or threatened to issue any order preventing
or suspending the use of any Preliminary Prospectus, the Prospectus or any part
thereof, and has not instituted or threatened to institute any proceedings with
respect to such an order.
4.1.5.
Free Writing
Prospectuses. The Underwriters covenant with the Company that
the Underwriters will not use, authorize the use of, refer to, or participate in
the planning for the use of a “free writing prospectus” as defined in Rule 405
under the 1933 Act, which term includes use of any written information furnished
by the Commission to the Company and not incorporated by reference into the
Registration Statement, without the prior written consent of the Company. Any
such free writing prospectus consented to by the Company is hereinafter referred
to as an “Underwriter Free
Writing Prospectus.”
4.2 Company Counsel
Matters.
4.2.1. Opinion of Counsel.
On the Closing Date, the Representative shall have received the favorable
opinion of DLA, dated the Closing Date, addressed to the Representative,
substantially in the form set forth in Exhibit B.
4.2.2. Cayman Islands
Opinion. On the Closing Date, the Representative shall have
received the favorable opinion of Xxxxxx and Xxxxxx, Cayman Islands counsel to
the Company, substantially in the form set forth in Exhibit C.
4.2.3. Option Closing Date Opinions
of Counsel. On the Option Closing Date, if any, the Representative shall
have received the favorable opinions of each counsel listed in Sections 4.2.1
and 4.2.2, dated the Option Closing Date, addressed to the Representative and in
form and substance reasonably satisfactory to the Representative, confirming as
of the Option Closing Date, the statements made by such counsels in their
respective opinions delivered on the Closing Date.
4.2.4. Reliance. In
rendering such opinions, such counsel may rely: (i) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Representative) of other counsel reasonably acceptable to the Representative,
familiar with the applicable laws; and (ii) as to matters of fact, to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdiction having
custody of documents respecting the corporate existence or good standing of the
Company, provided that copies of any such statements or certificates shall be
delivered to Loeb if requested. The opinions of counsel for the Company and any
opinions relied upon by such counsel shall include a
statement to the effect that it may be relied upon by counsel for the
Underwriters in its opinion delivered to the Underwriters.
4.3 Cold Comfort
Letter. At the time this Agreement is executed, and at each of
the Closing Date and the Option Closing Date, if any, you shall have received a
cold comfort letter, addressed to the Representative and in form and substance
satisfactory in all respects to you and to Loeb from BDO dated, respectively, as
of the date of this Agreement and as of the Closing Date and the Option Closing
Date, if any.
4.4 Officers’
Certificates.
4.4.1. Officers’
Certificate. At each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of
the Company signed by the Chairman of the Board and Chief Financial Officer of
the Company, dated the Closing Date or the Option Closing Date, as the case may
be, respectively, to the effect that the Company has performed all covenants and
complied with all conditions required by this Agreement to be performed or
complied with by the Company prior to and as of the Closing Date, or the Option
Closing Date, as the case may be, and that the conditions set forth in Section
4.5 hereof have been satisfied as of such date and that, as of the Closing Date
and the Option Closing Date, as the case may be, the representations and
warranties of the Company set forth in Section 2 hereof are true and correct. In
addition, the Representative will have received such other and further
certificates of officers of the Company as the Representative may reasonably
request.
4.4.2. Secretary’s
Certificate. At each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of
the Company signed by the Secretary or Assistant Secretary of the Company, dated
the Closing Date or the Option Closing Date, as the case may be, respectively,
certifying: (i) that the Memorandum and Articles of Association are true and complete,
have not been modified and are in full force and effect; (ii) that the
resolutions of the Company’s Board of Directors relating to the public offering
contemplated by this Agreement are in full force and effect and have not been
modified; (iii) as to the accuracy and completeness of all correspondence
between the Company or its counsel and the Commission; and (iv) as to the
incumbency of the officers of the Company. The documents referred to in such
certificate shall be attached to such certificate.
4.5 No Material
Changes. Prior to and on each of the Closing Date and the
Option Closing Date, if any: (i) there shall have been no material adverse
change or development involving a prospective material adverse change in the
condition or prospects or the business activities, financial or otherwise, of
the Company from the latest dates as of which such condition is set forth in the
Registration Statement and Prospectus; (ii) no action suit or proceeding,
at law or in equity, shall have been pending or threatened against the Company
or any Insider before or by any court or federal or state commission, board or
other administrative agency wherein an unfavorable decision, ruling or finding
may materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration
Statement and Prospectus; (iii) no stop order shall have been issued under
the Act and no proceedings therefore shall have been initiated or threatened by
the Commission; and (iv) the Registration Statement and the Prospectus and
any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Act and the
Regulations and shall conform in all material respects to the requirements of
the Act and the Regulations, and neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.6 Delivery of
Agreements.
4.6.1. Delivery of
Agreements. On the Effective Date, the Company shall have delivered to
the Representative executed copies of the Escrow Agreement, the Trust Agreement,
the Warrant Agreement, the Services Agreement and all of the Insider
Letters.
4.6.2. Closing Date
Deliveries. On the Closing Date, the Company shall have
delivered to the Representative executed copies of the Representative’s Purchase
Option.
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5.
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Indemnification.
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5.1 Indemnification of the
Underwriters.
5.1.1. General. Subject
to the conditions set forth below, the Company agrees to indemnify and hold
harmless each of the Underwriters, and each dealer selected by the
Representative that participates in the offer and sale of the Securities (each a
“Selected Dealer”) and each of their respective directors, officers and
employees and each person, if any, who controls any such Underwriter
(“Controlling Person”) within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any and all legal or other
expenses reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between any of the Underwriters and the Company or
between any of the Underwriters and any third party or otherwise) to which they
or any of them may become subject under the Act, the Exchange Act or any other
statute or at common law or otherwise or under the laws of foreign countries,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in (i) any Preliminary Prospectus, the Registration
Statement or the Prospectus (as from time to time each may be amended and
supplemented); (ii) any materials or information provided to investors by, or
with the approval of, the Company in connection with the marketing of the
offering of the Securities, including any “road show” or investor presentations
made to investors by the Company (whether in person or electronically); or (iii)
any application or other document or written communication (in this Section 5,
collectively called “application”) executed by the Company or based upon written
information furnished by the Company in any jurisdiction in order to qualify the
Securities under the securities laws thereof or filed with the Commission, any
state securities commission or agency, Nasdaq or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was included in the Underwriter Information. With respect to any
untrue statement or omission or alleged untrue statement or omission made in the
Preliminary Prospectus, the indemnity agreement contained in this Section 5.1.1
shall not inure to the benefit of any Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact
that a copy of the Prospectus was not given or sent to the person asserting any
such loss, liability, claim or damage at or prior to the written confirmation of
sale of the Securities to such person as required by the Act and the
Regulations, and if the untrue statement or omission has been corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of
non-compliance by the Company with its obligations under Section 3.3 hereof. The
Company agrees promptly to notify the Representative of the commencement of any
litigation or proceedings against the Company or any of its officers, directors
or Controlling Persons in connection with the issue and sale of the Securities
or in connection with the Registration Statement or Prospectus.
5.1.2. Procedure. If
any action is brought against an Underwriter, a Selected Dealer or a Controlling
Person in respect of which indemnity may be sought against the Company pursuant
to Section 5.1.1, such Underwriter, such Selected Dealer or Controlling Person,
as the case may be, shall promptly notify the Company in writing of the
institution of such action and the Company shall assume the defense of such
action, including the employment and fees of counsel (subject to the reasonable
approval of such Underwriter or such Selected Dealer, as the case may be) and
payment of actual expenses. Such Underwriter, such Selected Dealer or
Controlling Person shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter, such Selected Dealer or Controlling Person unless (i) the
employment of such counsel at the expense of the Company shall have been
authorized in writing by the Company in connection with the defense of such
action, or (ii) the Company shall not have employed counsel to have charge of
the defense of such action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
the reasonable fees and expenses of not more than one additional firm of
attorneys selected by the Underwriter (in addition to local counsel), Selected
Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding
anything to the contrary contained herein, if any Underwriter, Selected Dealer
or Controlling Person shall assume the defense of such action as provided above,
the Company shall have the right to approve the terms of any settlement of such
action which approval shall not be unreasonably withheld.
5.2 Indemnification of the
Company. Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless the Company, its directors, officers and
employees and agents who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the foregoing indemnity from the Company
to the several Underwriters, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions made with
respect to the Underwriter Information in any Preliminary Prospectus, the
Registration Statement or Prospectus or any amendment or supplement thereto or
in any application. In case any action shall be brought against the Company or
any other person so indemnified based on any Preliminary Prospectus, the
Registration Statement or Prospectus or any amendment or supplement thereto or
any application, and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the
rights and duties given to the several Underwriters by the provisions of Section
5.1.2.
5.3 Contribution.
5.3.1. Contribution
Rights. In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 5 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 5 provides for
indemnification in such case, or (ii) contribution under the Act, the Exchange
Act or otherwise may be required on the part of any such person in circumstances
for which indemnification is provided under this Section 5, then, and in each
such case, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount appearing
on the cover page of the Prospectus bears to the initial offering price
appearing thereon and the Company is responsible for the balance; provided,
that, no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11 (f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 5.3.1, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section, each director, officer and employee of
an Underwriter or the Company, as applicable, and each person, if any, who
controls an Underwriter or the Company, as applicable, within the meaning of
Section 15 of the Act shall have the same rights to contribution as such
Underwriter or the Company, as applicable.
5.3.2. Contribution
Procedure. Within fifteen days after receipt by any party to
this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (“contributing party”),
notify the contributing party of the commencement thereof, but the failure to so
notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section 5.3.2 are intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available. Each Underwriter’s
obligations to contribute pursuant to this Section 5.3 are several and not
joint.
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6.
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Default by an
Underwriter.
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6.1 Default Not Exceeding 10% of
Firm Units or Option Units. If any Underwriter or Underwriters shall
default in its or their obligations to purchase the Firm Units or the Option
Units, if the Over-allotment Option is exercised, hereunder, and if the number
of the Firm Units or Option Units with respect to which such default relates
does not exceed in the aggregate 10% of the number of Firm Units or Option Units
that all Underwriters have agreed to purchase hereunder, then such Firm Units or
Option Units to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to their respective commitments
hereunder.
6.2 Default Exceeding 10% of
Firm Units or Option Units. In the event that the default addressed in
Section 6.1 relates to more than 10% of the Firm Units or Option Units, you may
in your discretion arrange for yourself or for another party or parties to
purchase such Firm Units or Option Units to which such default relates on the
terms contained herein. If, within one (1) Business Day after such default
relating to more than 10% of the Firm Units or Option Units, you do not arrange
for the purchase of such Firm Units or Option Units, then the Company shall be
entitled to a further period of one (1) Business Day within which to procure
another party or parties satisfactory to you to purchase said Firm Units or
Option Units on such terms. In the event that neither you nor the Company
arrange for the purchase of the Firm Units or Option Units to which a default
relates as provided in this Section 6, this Agreement will automatically be
terminated by you or the Company without liability on the part of the Company
(except as provided in Sections 3.10 and 5 hereof) or the several Underwriters
(except as provided in Section 5 hereof); provided, however, that if such
default occurs with respect to the Option Units, this Agreement will not
terminate as to the Firm Units; and provided further that nothing herein shall
relieve a defaulting Underwriter of its liability, if any, to the other several
Underwriters and to the Company for damages occasioned by its default
hereunder.
6.3 Postponement of Closing
Date. In the event that the Firm Units or Option Units to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or Option
Closing Date for a reasonable period, but not in any event exceeding five (5)
Business Days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment to the
Registration Statement or the Prospectus that in the opinion of counsel for the
Underwriters may thereby be made necessary. The term “Underwriter” as
used in this Agreement shall include any party substituted under this Section 6
with like effect as if it had originally been a party to this Agreement with
respect to such Securities.
|
7.
|
Additional
Covenants.
|
7.1 Right of First
Refusal. The Company agrees that if the Units are sold in
accordance with the terms of this Underwriting Agreement, the Representative
shall have an irrevocable preferential right for a period of twelve (12) months
from the date of the consummation of a Business Combination to purchase for its
account or to sell for the account of the Company, or any subsidiary of or
successor to the Company any securities (whether debt or equity or any
combination thereof) of the Company or any such subsidiary or successor which
the Company or any such subsidiary or successor may seek to sell whether with or
without or through an underwriter, placement agent or broker-dealer and whether
pursuant to registration under the Act or otherwise. The Company and any such
subsidiary or successor will consult the Representative with regard to any such
proposed financing and will offer the Representative the opportunity to purchase
or sell any such securities on terms not more favorable to the Company or any
such subsidiary or successor, as the case may be, than it or they can secure
elsewhere. If the Representative fails to accept such offer within 10 business
days after the mailing of a notice containing the material terms of the proposed
financing proposal by registered mail or overnight courier service addressed to
the Representative, then the Representative shall have no further claim or right
with respect to the financing proposal contained in such notice. If, however,
the terms of such financing proposal are subsequently modified in any material
respect, the preferential right referred to herein shall apply to such modified
proposal as if the original proposal had not been made. The Representative’s
failure to exercise its preferential right with respect to any particular
proposal shall not affect its preferential rights relative to future proposals.
The Company shall have the right, at its option, to designate the Representative
as lead underwriter or co-manager of any underwriting group or co-placement
agent of any proposed financing in satisfaction of its obligations hereunder,
and the Representative shall be entitled to receive as its compensation 50% of
the compensation payable to the underwriting or placement agent group when
serving as co-manager or co-placement agent and 33% of the compensation payable
to the underwriting or placement agent group when serving as co-manager or
co-placement agent with respect to a proposed financing in which there are three
co-managing or lead underwriters or co-placement agents.
7.2 Prohibition on Press
Releases and Public Announcements. The Company will not issue
press releases or engage in any other publicity, without the Representative’s
prior written consent, for a period ending at 5:00 p.m. Eastern time on the
first business day following the 50th day following the Closing Date, other than
normal and customary releases issued in the ordinary course of the Company’s
business.
7.3 Additional Shares or
Options. The Company hereby agrees that until the Company consummates a
Business Combination, it shall not issue any Ordinary Shares or any options or
other securities convertible into Ordinary Shares, or any Preferred Shares which
participate in any manner in the Trust Fund or which vote as a class with the
Ordinary Shares on a Business Combination.
7.4 Trust Fund Waiver
Acknowledgment. Prior to the commencement by the Company of its due
diligence investigation of any operating business which the Company seeks to
acquire (“Target
Business”) or the obtaining of the services of any vendor (except BDO),
the Company shall seek to have such Target Business or vendor acknowledges in
writing, whether through a letter of intent, memorandum of understanding or
other similar document (and subsequently acknowledges the same in any definitive
document replacing any of the foregoing), that (a) it has read the Prospectus
and understands that the Company has established the Trust Fund, initially in an
amount of $50,000,000 (without giving effect to the exercise of the
Over-allotment Option) for the benefit of the Public Shareholders and that,
except for up to a maximum of $2,000,000 of the interest earned on the amounts
held in the Trust Fund, the Company may disburse monies from the Trust Fund only
(i) to the Public Shareholders in the event of the redemption of their shares or
the liquidation of the Company or (ii) to the Company after it consummates a
Business Combination and (b) for and in consideration of the Company (1)
agreeing to evaluate such Target Business for purposes of consummating a
Business Combination with it or (2) agreeing to engage the services of the
vendor, as the case may be, such Target Business or vendor agrees that it does
not have any right, title, interest or claim of any kind in or to any monies in
the Trust Fund (“CLAIM”) and waives any Claim it may have in the future as a
result of, or arising out of, any negotiations, contracts or agreements with the
Company and will not seek recourse against the Trust Fund for any reason
whatsoever. The foregoing letters shall substantially be in the form attached
hereto as Exhibit D and E, respectively. Furthermore, each officer and director
of the Company shall execute a waiver letter in the form attached hereto as
Exhibit F.
7.5 Insider Letters. The
Company shall not take any action or omit to take any action which would cause a
breach of any of the Insider Letters and will not allow any amendments to, or
waivers of, such Insider Letters without the prior written consent of the
Representative.
7.6 Memorandum and Articles of
Association. The Company shall not take any action or omit to take any
action that would cause the Company to be in breach or violation of its
Memorandum and Articles of Association.
7.7 Information
Requirements. The Company shall provide counsel to the Representative
with ten copies of all proxy information and all related material filed with the
Commission in connection with a Business Combination concurrently with such
filing with the Commission. In addition, the Company shall furnish any other
state in which its initial public offering was registered, such information as
may be requested by such state.
7.8 Acquisition/Liquidation
Procedure. The Company agrees: (i) that, prior to the consummation of any
Business Combination, it will submit such transaction to the Company’s
shareholders for their approval (“Business Combination Vote”)
even if the nature of the acquisition is such as would not ordinarily require
stockholder approval under applicable state law; and (ii) that, in the event
that the Company does not effect a Business Combination within 18 months from
the consummation of this Offering (subject to extension for an additional
six-month period, as described in the Prospectus), the Company will repurchase
its Public Securities and liquidate the Trust Account and distribute the
proceeds to all holders of IPO Shares (as defined below) as soon as reasonably
practicable, subject to the requirements of the laws of the Cayman Islands. Upon
liquidation of the Trust Account, the Company will distribute to all holders of
IPO Shares (as defined below) an aggregate sum equal to $10.00 per share (or
approximately $9.96 per share if the underwriters’ over-allotment is exercised
in full) (inclusive of any interest income accruing with respect to the net
proceeds attributable to the IPO Shares, net of taxes payable and interest
income of up to $2,000,000 previously released to the Company to fund its
working capital requirements). Only holders of IPO Shares (as defined below)
shall be entitled to receive liquidating distributions and the Company shall pay
no liquidating distributions with respect to any other share capital of the
Company, including the Warrants and Placement Warrants. With respect to the
Business Combination Vote, the Company shall cause the Initial Shareholder ( and
each of their permitted transferees) to vote the Ordinary Shares owned by them
in favor of a proposed Business Combination. At the time the Company seeks
approval of any potential Business Combination, the Company will offer each
holder of the Company’s Ordinary Shares issued in this Offering (“IPO Shares”) who has voted for the business
combination the right to redeem their IPO Shares at a per share price (“Redemption Price”) equal to the amount in the
Trust Fund (inclusive of any interest income accruing with respect to the net
proceeds attributable to the IPO Shares, net of taxes payable and interest
income of up to $2,000,000 previously released to the Company to fund its
working capital requirements) calculated as of two business days prior to the
consummation of the proposed Business Combination divided by the total number of
IPO Shares. Holders of the Company’s Ordinary Shares issued in this
Offering who have voted against the business combination can redeem their IPO
Shares but will not received their pro rata interest income.
7.9 Rule 419. The Company
agrees that it will use its best efforts to prevent the Company from becoming
subject to Rule 419 under the Act prior to the consummation of any Business
Combination, including but not limited to using its best efforts to prevent any
of the Company’s outstanding securities from being deemed to be a “xxxxx stock”
as defined in Rule 3a-51-1 under the Exchange Act during such
period.
7.10 Affiliated
Transactions. Except as set forth on Schedule 7.10, the Company shall
cause each of the officers to agree that, in order to minimize potential
conflicts of interest which may arise from multiple affiliations, the officers
will present to the Company for its consideration, prior to presentation to any
other person or company, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business
Combination, the liquidation of the Company or until such time as the officers
cease to be an officer of the Company, subject to any pre-existing fiduciary
obligations the officers might have.
7.11 Target Net Assets.
The Company agrees that the initial Target Business that it acquires must have a
fair market value (exclusive of the Escrowed Fees) equal to at least 80% of the
Company’s net assets 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 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 Company’s fair market
value (exclusive of the Escrowed Fees) at the time of such acquisition, the
Company will obtain an opinion from an unaffiliated, independent investment
banking firm which is a member of FINRA with respect to the satisfaction of such
criteria. The Company is not required to obtain an opinion from an investment
banking firm as to the fair market value if the Company’s Board of Directors
independently determines that the Target Business does have sufficient fair
market value.
7.12 Compliance with
Agreements. The Company shall comply in all material respects with all of
its covenants and agreements contained in, and shall perform all of its
obligations under, the Warrant Agreement, the Placement Warrant Purchase
Agreement, the Trust Agreement and the Escrow Agreement.
|
8.
|
Representations and
Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this
Agreement shall be deemed to be representations, warranties and agreements
as of the Closing Date or the Option Closing Date, if any, and such
representations, warranties and agreements of the Underwriters and the
Company, including the indemnity agreements contained in Section 5 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriters, the Company or any
controlling person, and shall survive termination of this Agreement or the
issuance and delivery of the Securities to the Underwriters until the
earlier of the expiration of any applicable statute of limitations and the
seventh anniversary of the later of the Closing Date or the Option Closing
Date, if any, at which time the representations, warranties and agreements
shall terminate and be of no further force and
effect.
|
|
9.
|
Effective Date of this Agreement and
Termination Thereof.
|
9.1 Effective
Date. This Agreement shall become effective on the Effective
Date at the time the Registration Statement is declared effective by the
Commission.
9.2 Termination. You
shall have the right to terminate this Agreement at any time prior to the
Closing Date, (i) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, general securities markets in the United States; or
(ii) if trading on the NYSE Amex, the NASDAQ Global Market or the NASDAQ
Capital Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required by FINRA or by order of the Commission
or any other government authority having jurisdiction, or (iii) if the
United States shall have become involved in a new war or an increase in major
hostilities, or (iv) if a banking moratorium has been declared by a New
York State or federal authority, or (v) if a moratorium on foreign exchange
trading has been declared which materially adversely impacts the United States
securities markets, or (vi) if the Company shall have sustained a material
loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act which, whether or not such loss shall have been
insured, will, in your opinion, make it inadvisable to proceed with the delivery
of the Firm Units or Option Units, or (vii) if the Company is in material
breach of any of its representations, warranties or covenants hereunder, or
(viii) if the Representative shall have become aware after the date hereof
of such a material adverse change in the conditions or prospects of the Company,
or such adverse material change in general market conditions as in the
Representative’s judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the securities or to enforce contracts made by
the Underwriters for the sale of the Securities.
9.3 Expenses. In
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay or reimburse the out
of pocket expenses related to the transactions contemplated herein shall be
governed by Section 3.9 hereof and the Company shall reimburse the
Representative for the full amount of its actual accountable expenses incurred
to such date of termination up to a maximum of $50,000 (including the $25,000
advance made to the Representative) for all such expenses (which expenses may
include, but will not be limited to, all reasonable fees and disbursements of
the Representative’s counsel, travel, lodging and other “road show” expenses,
mailing, printing and reproduction expenses, and any expenses incurred by the
Representative in conducting its due diligence, including background checks of
the Company’s officers and directors), less amounts, if any, previously paid to
the Representative as an advance and in reimbursement for such
expenses.
9.4 Indemnification. Notwithstanding
any contrary provision contained in this Agreement, any election hereunder or
any termination of this Agreement, and whether or not this Agreement is
otherwise carried out, the provisions of Section 5 shall not be in any way
affected by, such election or termination or failure to carry out the terms of
this Agreement or any part hereof.
|
10.
|
Miscellaneous.
|
10.1 Notices. All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed (registered or certified mail, return
receipt requested), personally delivered or sent by facsimile transmission and
confirmed and shall be deemed given when so delivered or faxed and confirmed or
if mailed, two days after such mailing.
If to the
Representative:
Xxxxxx
& Xxxxxxx, LLC
0000
Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
General Counsel
Fax No.:
000-000-0000
Copy
to:
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxxx
Xxxxxxxx, Esq.
If to the
Company:
Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Xxxxxxxxx Xxxxxxxxxx, Co-Chief Executive Officer
Copy
to:
DLA Piper
LLP (US)
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx-Xxxxxx Xxxxxx, Esq.
Attn: Xxxxxxx
X. Xxxxxx, Esq.
10.2 Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
10.3 Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
10.4 Entire
Agreement. This Agreement (together with the other agreements
and documents being delivered pursuant to or in connection with this Agreement)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
10.5 Binding
Effect. This Agreement shall inure solely to the benefit of
and shall be binding upon the Representative, the Underwriters, the Company and
the Controlling Persons, directors and officers referred to in Section 5 hereof,
and their respective successors, legal representatives and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provisions
herein contained. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of securities from any of the
Underwriters.
10.6 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws principles thereof. The Company hereby agrees that
any action, proceeding or claim against it arising out of, or relating in any
way to this Agreement shall be brought and enforced in the New York Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
10.1 hereof. Such mailing shall be deemed personal service and shall be legal
and binding upon the Company in any action, proceeding or claim. The Company
agrees that the prevailing party(ies) in any such action shall be entitled to
recover from the other party(ies) all of its reasonable attorneys’ fees and
expenses relating to such action or proceeding and/or incurred in connection
with the preparation therefore.
10.7 Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of this
Agreement by facsimile or email/pdf transmission shall constitute valid and
sufficient delivery thereof.
10.8 Waiver,
etc. The failure of any of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of any of the parties hereto
to thereafter enforce each and every provision of this Agreement. No waiver of
any breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
[SIGNATURE
PAGE FOLLOWS]
If the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
|
Very
truly yours,
|
||||
|
CAZADOR
ACQUISITION CORPORATION LTD.
|
||||
|
By:
|
||||
|
Name:
|
Francesco
Pionanetti
|
|||
|
Title:
|
Co-Chief
Executive Officer
|
|||
|
Accepted
on the date first above written.
|
||||
|
XXXXXX
& XXXXXXX, LLC
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
SCHEDULE
I
CAZADOR
ACQUISITION CORPORATION LTD.
5,000,000
UNITS
|
Underwriter
|
Number
of Firm Units to be Purchased
|
|
|
Xxxxxx
& Xxxxxxx, LLC
|
||
|
Chardan
Capital Markets, LLC
|
||
| EarlyBirdCapital, Inc. | ||
| Macquarie Capital (USA) Inc. |
EXHIBIT
A
Form
of Representative’s Purchase Option
EXHIBIT
B
Opinion
of DLA Piper LLP
EXHIBIT
C
Opinion
of Xxxxxx and Xxxxxx
EXHIBIT
D
FORM
OF TARGET BUSINESS LETTER
Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Francesco Pionanetti, Co-Chief Executive Officer
Reference
is made to the Final Prospectus of Cazador Acquisition Corporation Ltd. (the
“COMPANY”), dated __________, 2010 (the “PROSPECTUS”). Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in Prospectus.
We have
read the Prospectus and understand that the Company has established the Trust
Fund, initially in an amount of $50,000,000 for the benefit of the Public
Shareholders and the underwriters of the Company’s initial public offering (the
“Underwriters”) and that, except for up to a maximum of $2,000,000 of the
interest earned on the amounts held in the Trust Fund, the Company may disburse
monies from the Trust Fund only: (i) to the Public Shareholders in the event of
the redemption of their shares or the liquidation of the Company; or (ii) to the
Company and the Underwriters after consummation of a Business
Combination.
For and
in consideration of the Company agreeing to evaluate the undersigned for
purposes of consummating a Business Combination with it, the undersigned hereby
agrees that it does not have any right, title, interest or claim of any kind in
or to any monies in the Trust Fund (the “CLAIM”) and hereby waives any Claim it
may have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with the Company and will not seek recourse against the
Trust Fund for any reason whatsoever.
|
Print
Name of Target Business
|
|
Authorized
Signature of Target
Business
|
EXHIBIT
E
FORM
OF VENDOR LETTER
Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Xxxxxxxxx Xxxxxxxxxx, Co-Chief Executive Officer
Reference
is made to the Final Prospectus of Cazador Acquisition Corporation Ltd. (the
“COMPANY”), dated __________, 2010 (the “PROSPECTUS”). Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in Prospectus.
We have
read the Prospectus and understand that the Company has established the Trust
Fund, initially in an amount of $50,000,000 for the benefit of the Public
Shareholders and the underwriters of the Company’s initial public offering (the
“Underwriters”) and that, except for up to a maximum of $2,000,000 of the
interest earned on the amounts held in the Trust Fund, the Company may disburse
monies from the Trust Fund only: (i) to the Public Shareholders in the event of
the redemption of their shares or the liquidation of the Company; or (ii) to the
Company and the Underwriters after consummation of a Business
Combination.
For and
in consideration of the Company engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest or
claim of any kind in or to any monies in the Trust Fund (the “CLAIM”) and hereby
waives any Claim it may have in the future as a result of, or arising out of,
any contracts or agreements with the Company and will not seek recourse against
the Trust Fund for any reason whatsoever.
|
Print
Name of Vendor
|
2
EXHIBIT
F
FORM
OF DIRECTOR/OFFICER LETTER
Cazador
Acquisition Corporation Ltd.
c/o Arco
Capital Management LLC
0
Xxxxxxxx Xxxxxx
0000
Xxxxx, Xxxxxxxx
Attn:
Xxxxxxxxx Xxxxxxxxxx, Co-Chief Executive Officer
The
undersigned officer or director of Cazador Acquisition Corporation Ltd. (the
“COMPANY”) hereby acknowledges that the Company has established the Trust Fund,
initially in an amount of $50,000,000 for the benefit of the Public Shareholders
and the underwriters (the “Underwriters”) of the Company’s initial public
offering (the “IPO”) and that the Company may disburse monies from the Trust
Fund only: (i) to the Public Shareholders in the event of the redemption of
their shares or the liquidation of the Company; or (ii) to the Company and the
Underwriters after consummation of a Business Combination.
The
undersigned hereby agrees that it does not have any right, title, interest or
claim of any kind in or to any monies in the Trust Fund (the “CLAIM”) and hereby
waives any Claim it may have in the future as a result of, or arising out of,
any contracts or agreements with the Company and will not seek recourse against
the Trust Fund for any reason whatsoever.
Notwithstanding
the foregoing, such waiver shall apply to the shares underlying the units
acquired by the undersigned or any of its affiliates in the IPO and any shares
subsequently acquired by the undersigned in the public market.
|
Print
Name of Officer/Director
|
|
Authorized
Signature of
Officer/Director
|
3
