UNDERWRITING AGREEMENT between ARCADE CHINA ACQUISITION CORP. and MORGAN JOSEPH TRIARTISAN LLC Dated: ●, 2011
between
and
XXXXXX XXXXXX TRIARTISAN LLC
Dated: ●, 2011
●, 2011
Xxxxxx Xxxxxx TriArtisan LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
Several Underwriters named in Schedule I hereto
Re: Public Offering of Securities
Ladies and Gentlemen:
The undersigned, Arcade China Acquisition Corp., a Delaware corporation (“Company”), hereby confirms its agreement with Xxxxxx Xxxxxx TriArtisan LLC (“Xxxxxx Xxxxxx”) and with the other underwriters named on Schedule I hereto for which Xxxxxx Xxxxxx is acting as representative (Xxxxxx Xxxxxx, in its capacity as representative, is referred to herein variously as “you,” or the “Representative”; the Representative and the other underwriters are collectively referred to as the “Underwriters” or, individually, an “Underwriter”) as follows:
1.1.1 Purchase of Firm Units. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters, an aggregate of 4,000,000 units (“Firm Units”) of the Company, at a purchase price (net of discounts and commissions) of $9.75 per Firm Unit. The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Units set forth opposite their respective names on Schedule I attached hereto and made a part hereof at a purchase price (net of discounts and commissions) of $9.75 per Firm Unit. The Firm Units are to be offered initially to the public at the offering price of $10.00 per Firm Unit. Each Firm Unit consists of one share of the Company’s common stock, par value $0.0001 per share (“Common Stock”), and one warrant (“Warrant”). The shares of Common Stock and the Warrants included in the Firm Units will trade separately on the fifth business day following the earlier to occur of the expiration of the Over-allotment Option (as defined in Section 1.2.1 hereof), which is 45 days from the date of the Prospectus (as defined in Section 2.1.1 hereof), its exercise in full or the announcement by the Underwriters of their intention not to exercise all or any remaining portion of the Over-allotment Option, but in no event will the shares of Common Stock and the Warrants included in the Firm Units trade separately until the business day after (i) the Company has filed with the Securities and Exchange Commission (the “Commission”) a Current Report on Form 8-K which includes an audited balance sheet reflecting the Company’s receipt of the proceeds of the offering of the Firm Units and the Private Placement (as defined in Section 1.3), including any proceeds the Company receives from the exercise of the Over-allotment Option if such option is exercised prior to the filing of the Form 8-K and (ii) the Company has filed with the Commission a Current Report on Form 8-K and issued a press release announcing when such separate trading will begin. Each Warrant entitles its holder to purchase one share of Common Stock for $11.50 per share during the period commencing on the later of 30 days after the consummation by the Company of its Business Combination or one year from the Closing Date (as defined in Section 1.1.2 hereof) and terminating on the five-year anniversary of the consummation by the Company of its Business Combination. “Business Combination” shall mean the Company’s initial acquisition of one or more operating businesses or assets through a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination.
1.1.2 Payment and Delivery. Delivery and payment for the Firm Units shall be made at 10:00 a.m., New York City time, on the fourth Business Day (as defined below) following the effective date (“Effective Date”) of the Registration Statement or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of XxXxxxxxx Will & Xxxxx LLP (“XxXxxxxxx”) or at such other place as shall be agreed upon by the Representative and the Company. The hour and date of delivery and payment for the Firm Units is called the “Closing Time” and the date on which the Closing Time occurs is called the “Closing Date.” Payment for the Firm Units shall be made by wire transfer in Federal (same day) funds, payable as follows: $38,000,000.00 of the proceeds received by the Company for the Firm Units shall be deposited in the trust account established by the Company for the benefit of the holders of shares of Common Stock included in the Units (as defined in Section 1.2.1) (such shares of Common Stock, the “Public Common Stock” and the holders of such Public Common Stock, the “Public Stockholders”) as described in the Registration Statement (“Trust Account”) pursuant to the terms of an Investment Management Trust Agreement (“Trust Agreement”) between the Company and Continental Stock Transfer & Trust Company (“CST”) and the remaining proceeds shall be paid (subject to Section 4.10 hereof) to the order of the Company upon delivery to you of the Firm Units through the facilities of the Depository Trust Company (“DTC”) for the account of the Underwriters or, at the instruction of the Representative, by delivery of certificates in form and substance satisfactory to 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. If the Representative has instructed that certificates be delivered for the Firm Units, the Company will permit the Representative to examine and package the Firm Units for delivery, at least one full Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for all the Firm Units. “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
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1.1.3 Contingent Fees. The following additional contingent fees (the “Contingent Fees”) will become payable from the amounts held in the Trust Account solely in the event the Company consummates the Business Combination: (a) Xxxxxx Xxxxxx will be paid a deferred commission equal to 0.5% of the gross proceeds from the sale of the Units; and (b) to the extent that, in connection with a Business Combination, Xxxxxx Xxxxxx assists the Company in marketing the Business Combination to investors who are or become Public Stockholders and do not redeem their Public Shares in connection with the Business Combination, Xxxxxx Xxxxxx will be paid a fee equal to 2.5% of the pro rata portion of the Trust Account to which the shares that were not redeemed by such Public Stockholders as a result of Xxxxxx Xxxxxx’x efforts would have been entitled to receive had they been redeemed. The Contingent Fees will be payable from amounts on deposit in the Trust Account if and when the Company consummates a Business Combination. Xxxxxx Xxxxxx understands and agrees that if, in connection with a Business Combination, other firms assist the Company in marketing the Business Combination to investors who are or become Public Stockholders and do not redeem their Public Shares in connection with the Business Combination, the Company may pay such other firms a fee equal to 2.5% of the pro rata portion of the Trust Account to which the shares that were not redeemed by such Public Stockholders as a result of such firms’ efforts would have been entitled to receive had they been redeemed. In the event that the Company is unable to consummate a Business Combination and CST, the trustee of the Trust Account, commences liquidation of the Trust Account, Xxxxxx Xxxxxx hereby agrees to the following: (i) to forfeit any and all rights or claims to the Contingent Fees; and (ii) that the Contingent Fees shall be distributed on a pro-rata basis among the Public Stockholders along with any interest accrued thereon, net of taxes payable.
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, facsimile transmission or e-mail, 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 Time” and the date on which the Option Closing Time occurs the “Option Closing Date”), which will not be later than five full Business Days after the date of the notice or such other time and in such other manner as shall be agreed upon by the Company and the Representative, at the offices of XxXxxxxxx or at such other place as shall be agreed upon by the Company and the Representative. 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.
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2.1.1 Pursuant to the Act. The Company has filed with the Commission a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-172953), including any related preliminary prospectus (“Preliminary Prospectus”), for the registration of the Public Securities under the Securities Act of 1933, as amended (“Act”), which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Act, and the rules and regulations (the “Regulations”) of the Commission under the Act. The conditions for use of Form S-1 to register the offering of the Units (the “Offering”) under the Act, as set forth in the General Instructions to such Form, have been satisfied. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement becomes effective (including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to Rule 430A of the Regulations), is hereinafter called the “Registration Statement,” and the form of the final prospectus dated the Effective Date filed by the Company with the Commission pursuant to Rule 424 of the Regulations is hereinafter called the “Prospectus.” For purposes of this Agreement, “Time of Sale” means ● a/p.m. New York City time, on the date of this Agreement. Prior to the Time of Sale, the Company prepared a Preliminary Prospectus, which was included in the Registration Statement dated ●, 2011, for distribution by the Underwriters (such Preliminary Prospectus together with the Time of Sale Information, if any, set forth on Schedule II hereto, the “Sale Preliminary Prospectus”). 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 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. All of the Public Securities have been registered for public sale under the Act pursuant to the Registration Statement or, if any Rule 462(b) Registration Statement is filed, will be duly registered for public sale under the Act with the filing of such Rule 462(b) Registration Statement. The Registration Statement has been declared effective by the Commission on the date hereof.
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2.3.2 10b-5 Representation. The Registration Statement, at the time it became effective, did not 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. Neither the Sale Preliminary Prospectus, at the Time of Sale, nor the Prospectus (including any amendment thereof or supplement thereto), as of its date and on the Closing Date and any Option Closing Date, contained, contains 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. The representations and warranties made in this Section 2.3.2 do not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company by the Representative expressly for use in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus or any amendment thereof or supplement thereto, it being understood and agreed that the only such information furnished by the Representative consists of the information described as such in Section 6.2 hereof.
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2.4.1 No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, except as otherwise specifically stated therein, (a) 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 (i) as contemplated pursuant to this Agreement, (b) in the ordinary course of business and (c) transactions described in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus and (iii) no member of the Company’s management has resigned from any position with the Company.
2.7 Authorized Capital; Options; Etc. The Company had at the date or dates indicated in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus duly authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus. Based on the assumptions stated in the Registration Statement, the Sale Preliminary Prospectus 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, the Sale Preliminary Prospectus and the Prospectus, on the Effective Date and on the Closing Date, there will be no options, warrants, or other rights to purchase or otherwise acquire any authorized but unissued shares of Common Stock of the Company or any security convertible into shares of Common Stock of the Company, or any contracts or commitments to issue or sell shares of Common Stock or any such options, warrants, rights or convertible securities.
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2.8.3 Warrants and Placement Warrants The Warrants and 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 therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof, and the Warrants and the 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 therefor may be brought. The shares of Common Stock issuable upon exercise of the Warrants and the Placement Warrants have been reserved for issuance upon the exercise of the Warrants and the Placement Warrants and, when issued in accordance with the terms of the Warrants and the Placement Warrants, will be duly and validly authorized, 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; such shares of Common Stock 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 such shares of Common Stock has been duly and validly taken.
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2.11.1 All Agreements with Respect to the Company. This Agreement, the Warrant Agreement, the Trust Agreement, the Escrow Agreement, the Warrant Subscription Agreement and the Insider Letters have been duly and validly authorized, executed and delivered by the Company and 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 therefor may be brought. The execution, delivery, and performance by the Company of this Agreement, the Warrant Agreement, the Trust Agreement, the Escrow Agreement, the Warrant Subscription Agreement and the Insider Letters and 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; (ii) result in any violation of the provisions of the Certificate of Incorporation or the Bylaws of the Company; or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or business, except in the case of (i) and (iii) as would not reasonably be expected to have a Material Adverse Effect.
2.11.4 Insider Letters. The Insider Letter to which it or he is a party has been duly and validly authorized, executed and delivered by each of Kravis, Arcade Partners and to the Company’s knowledge, the Company’s officers and directors, and is enforceable against each of Kravis, Arcade Partners and to the Company’s knowledge, the Company’s offers and directors in accordance with its 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 therefor may be brought.
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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 Insider that is required to be disclosed and has not been so disclosed in the Registration Statement, the Sale Preliminary Prospectus, the Prospectus or the Questionnaires.
2.17.1 Finder’s Fees. There are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any Insider with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings of the Company or any Insider that may affect the Underwriters’ compensation, as determined by FINRA.
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2.18.1 Foreign Corrupt Practices Act. None of the Company or any of the Insiders or any other person has, while acting on behalf of the Company, (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977.
2.26 Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Units, any offering material in connection with the offering and sale of the Units other than the Sale Preliminary Prospectus and the Prospectus, in each case as supplemented and amended.
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(i) During the time when a prospectus relating to the Public Securities is required to be delivered under the Act, the Company will use all reasonable 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.
(ii) If at any time prior to the filing of the Prospectus pursuant to the requirements of Rule 424 of the Regulations any event shall have occurred as a result of which, in the reasonable opinion of counsel for the Company or counsel for the Underwriters, the Sale Preliminary 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, the Company will notify the Representative promptly so that the use of the Sale Preliminary Prospectus may cease until it is amended or supplemented and prepare and file with the Commission, subject to Section 4.1 hereof, an appropriate amendment or supplement in accordance with the Act.
(iii) If at any time when a prospectus relating to the Public Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act), any event shall have occurred as a result of which, in the reasonable 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 Registration Statement or the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission, subject to Section 4.1 hereof, an appropriate amendment or supplement in accordance with the Act.
4.2.3 Exchange Act Registration. The Company will maintain the registration of the Public Securities under the provisions of the Exchange Act (except in connection with a going-private transaction) for a period of five years from the Effective Date, or until the Company is required to be liquidated if earlier, or, in the case of the Warrants, until the Warrants expire and are no longer exercisable. For a period of five years from the consummation of a Business Combination, or following the liquidation of the Trust Account if the Company fails to complete a Business Combination in the required time frame, the Company will not deregister the Public Securities under the Exchange Act without the prior written consent of the Representative.
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4.6 Effectiveness and Events Requiring Notice to the Representative. The Company will use its reasonable 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 Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose, (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus, (v) of the receipt of any comments or request for any additional information from the Commission, and (vi) of the happening of any event during the period described in Section 4.2.1(i) hereof that, in the judgment of the Company or its counsel, makes any statement of a material fact made in the Registration Statement, the Sale Preliminary Prospectus or the Prospectus untrue or that requires the making of any changes in the Registration Statement, the Sale Preliminary Prospectus 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.
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4.9.2 Transfer Sheets. For a period of two years following the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain CST or another transfer and warrant agent acceptable to the Representative (“Transfer Agent”) and will furnish to the Underwriters at the Company’s sole cost and expense, for a period of one year following the Effective Date, such transfer sheets of the Company’s securities as the Representative may reasonably request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. The Underwriters acknowledge that CST is an acceptable Transfer Agent.
4.9.3 Secondary Market Trading Maintenance. Unless the Public Securities are listed or quoted, as the case may be, on the New York Stock Exchange, the American Stock Exchange or quoted on the NASDAQ Global Market or NASDAQ Capital Market, until such earlier time upon which the Company is required to cease all operations and redeem all of the Public Common Stock or upon consummation of a Business Combination, the Company shall at the beginning of each fiscal quarter determine whether there has been any change in the states in which the Public Securities may be traded in non-issuer transactions under the Blue Sky laws of the fifty States and provide the Representative with a written report of any such change.
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4.10.1 General Expenses Related to the Offering. 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 Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement, each Preliminary Prospectus and the Prospectus and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be reasonably required by the Underwriters, (ii) the printing, engraving, issuance and delivery of the Units, the shares of Common Stock and the Warrants included in the Units, including any transfer or other taxes payable thereon, (iii) filing fees and reasonable legal fees and expenses of counsel incurred in (A) making required filings with FINRA and (B) qualifying the Public Securities under state or foreign securities or Blue Sky laws, (iv) fees, costs and expenses incurred in procuring the quotation of the Public Securities on the OTC Bulletin Board, (v) fees and disbursements of the transfer and warrant agent, (vi) the Company’s expenses associated with “due diligence” and “road show” meetings arranged by the Representative, (vii) the preparation, binding and delivery of one (1) velo-bound “transaction closing set” and compact disc of same, to the extent that such closing sets are also being prepared for the Company, and (viii) all other actual documented 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 4.10.1. The Company also agrees that, if requested by the Representative, it will engage and pay up to an aggregate amount of $15,000 for an initial investigative search firm of the Representative’s choice to conduct an investigation of the principals of the Company as shall be mutually selected by the Representative and the Company. The Representative may 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 in this Agreement to be paid by the Company to the Representative and others.
4.12 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.
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4.18 Accountants. Until the earlier of five years from the Effective Date or until such earlier time upon which the Company is required to cease all operations and redeem the Public Common Stock, the Company shall retain RK & Co. or another independent registered public accounting firm reasonably acceptable to the Representative.
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4.23.1 The Company covenants and agrees, that prior to its initial Business Combination it will not seek to amend or modify its Certificate of Incorporation, including, but not limited to provisions (A) through (L) of Article Fifth of its Certificate of Incorporation without the prior written consent of the Representative.
4.23.2 The Company acknowledges that the purchasers of the Public Securities in the Offering shall be deemed to be third party beneficiaries of this Agreement and specifically this Section 4.23.
4.23.3 The Representative specifically advises the Company that it will not waive this Section 4.23 under any circumstances.
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(i) The Registration Statement shall have become effective not later than 5:00 p.m., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by you, and, at each of the Closing Time and the Option Closing Time;
(ii) 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 have been threatened in writing 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 XxXxxxxxx, counsel to the Underwriters;
(iii) No order suspending the sale of the Units in any jurisdiction designated by you pursuant to Section 4.4 hereof shall be in effect either on the Closing Date or the Option Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened in writing; and
(iv) The Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b).
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(i) Confirming that they are independent accountants with respect to the Company within the meaning of the Act and the applicable Regulations and that they have not, during the periods covered by the financial statements included in the Preliminary Prospectus, Sale Preliminary Prospectus and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the published Regulations thereunder;
(iii) Stating that, on the basis of their review which included a reading of the latest available unaudited interim financial statements of the Company (with an indication of the date of the latest available unaudited interim financial statements), a reading of the latest available minutes of the stockholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that (a) the unaudited financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations or are not fairly presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements of the Company included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, or (b) at a date not earlier than five days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any change in the capital stock or long-term debt of the Company, or any decrease in the stockholders’ equity of the Company as compared with amounts shown in the March 2, 2011 balance sheet included in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus, other than as set forth in or contemplated by the Registration Statement, the Sale Preliminary Prospectus and the Prospectus or, if there was any decrease, setting forth the amount of such decrease, and (c) during the period from March 2, 2011 to a specified date not earlier than five days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any decrease in revenues, net earnings or net earnings per share of Common Stock, in each case as compared with the corresponding period in the preceding year and as compared with the corresponding period in the preceding quarter, other than as set forth in or contemplated by the Registration Statement the Sale Preliminary Prospectus and the Prospectus, or, if there was any such decrease, setting forth the amount of such decrease;
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(iv) Setting forth, at a date not earlier than five days prior to the Effective Date, the amount of liabilities of the Company (including a break-down of commercial papers and notes payable to banks);
(v) Stating that they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Registration Statement, the Sale Preliminary Prospectus and the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement;
(vi) Stating that they have not, since the Company’s incorporation, brought to the attention of the Company’s management any reportable condition related to internal structure, design or operation as defined in the Statement on Auditing Standards No. 60 “Communication of Internal Control Structure Related Matters Noted in an Audit,” in the Company’s internal controls; and
(vii) Statements as to such other matters incident to the transaction contemplated hereby as you may reasonably request.
(i) 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;
(ii) that the conditions set forth in Section 5.1.1(ii) and (iii) and Section 5.5 hereof have been satisfied as of such date and that, as of the Closing Time and the Option Closing Time, as the case may be; and
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(iii) the representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the Closing Time and the Option Closing Time, as the case may be.
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10.2 Termination. You shall have the right to terminate this Agreement at any time prior to the Closing Date if (i) trading in the Company’s Units, Common Stock or Warrants shall have been suspended by the Commission, (ii) any events or circumstances shall have occurred which have, or are reasonably expected to have, a Material Adverse Effect, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States, or other calamity or crisis the effect of which on the financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the Offering or delivery of the Units, (iv) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital Market or on the OTC Bulletin Board (or successor trading market or quotation system) shall have been suspended, or minimum or maximum prices for trading shall have been established, or maximum ranges for prices for securities shall have been fixed, or (v) if a banking moratorium has been declared by a New York State or Federal authority.
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If to the Representative:
Xxxxxx Xxxxxx TriArtisan LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Copy to:
XxXxxxxxx Will & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company:
00 XxXxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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11.7 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. 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 12.1 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 therefor.
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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.
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Very truly yours,
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By:
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Name:
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Title:
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||||
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Accepted on the date first
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above written.
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XXXXXX XXXXXX TRIARTISAN LLC
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By:
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Name:
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Title:
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SCHEDULE I
4,000,000 Units
|
Underwriter
|
Number of Firm Units
to be Purchased
|
|
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Xxxxxx Xxxxxx TriArtisan LLC
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●
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| Xxxxxx Xxxxxx TriArtisan Capital LLC |
●
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Ladenburg Xxxxxxxx & Co. Inc.
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●
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SCHEDULE II
TIME OF SALE INFORMATION
EXHIBIT A
FORM OF TARGET BUSINESS LETTER
Gentlemen:
Reference is made to the Final Prospectus of Arcade China Acquisition Corp. (the “Company”), dated ●, 2011 (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 Account, initially in an amount of at least $● for the benefit of the Public Stockholders and the Underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for a portion of the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event they elect to redeem their public shares in connection with the consummation of a Business Combination, (ii) to the Public Stockholders if the Company fails to consummate a Business Combination within 21 months from the date of the closing of the offering or (iii) to the Company after or concurrently with the 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 Account (each, a “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 Account for any reason whatsoever.
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Print Name of Target Business
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Authorized Signature of Target Business
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EXHIBIT B
FORM OF VENDOR LETTER
Gentlemen:
Reference is made to the Final Prospectus of Arcade China Acquisition Corp. (the “Company”), dated ●, 2011 (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 Account, initially in an amount of at least $● for the benefit of the Public Stockholders and the Underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for a portion of the interest earned on the amounts held in the Trust Account, the Company may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event they elect to redeem their public shares in connection with the consummation of a Business Combination, (ii) to the Public Stockholders if the Company fails to consummate a Business Combination within 21 months from the date of the closing of the offering or (iii) to the Company after or concurrently with the consummation of a Business Combination.
For and in consideration of the Company agreeing to engage 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 Account (each, a “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and will not seek recourse against the Trust Account for any reason whatsoever.
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Print Name of Vendor
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Authorized Signature of Vendor
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