Jackson Acquisition Company (a Delaware corporation) 20,000,000 Units UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION VERSION
Xxxxxxx Acquisition Company
(a Delaware corporation)
20,000,000 Units
Dated: December 8, 2021
XXXXXXX ACQUISITION COMPANY
(a Delaware corporation)
20,000,000 Units
December 8, 2021
BofA Securities, Inc.
as Representative of the Underwriter
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Acquisition Company, a Delaware corporation (the “Company”), confirms its agreement with BofA Securities, Inc. (“BofA”), in its capacity as the underwriter named in Schedule A hereto (the “Underwriter”), for whom BofA is acting as representative (in such capacity, the “Representative”), with respect to (i) the sale by the Company and the purchase by the Underwriter of the number of units (the “Units”) of the Company set forth in Schedule A hereto, totaling 20,000,000 Units in the aggregate, and (ii) the grant by the Company to the Underwriter of the option described in Section 2(b) hereof to purchase all or any part of 3,000,000 additional Units. Each Unit consists of one share of Class A common stock, par value $0.0001, of the Company (the “Class A Shares”) and one-half of one warrant of the Company to purchase one Class A Share (the “Warrants”). The aforesaid 20,000,000 Units (the “Initial Securities”) to be purchased by the Underwriter and all or any part of the 3,000,000 additional Units subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that the Underwriter proposes to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-254727), including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and the Rule 430A Information, is herein called, collectively, the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished to the Underwriter for use in connection with the offering and sale of the Securities, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“XXXXX”).
As used in this Agreement:
“Applicable Time” means 5:00 P.M., New York City time, on December 8, 2021 or such other time as agreed by the Company and BofA.
“General Disclosure Package” means the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of, or Rule 163B under, the 1933 Act.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the 1933 Act.
“charter” means the Amended and Restated Certificate of Incorporation of the Company.
On March 5, 2021, the Company was initially formed for the purpose of effecting a merger, share exchange, share purchase, reorganization or similar business combination (a “Business Combination”).
On the date hereof, RJ Healthcare SPAC, LLC, a Delaware limited liability company (the “Sponsor”), has committed to purchase in a private placement an aggregate of 9,560,000 private placement warrants to purchase Class A Shares (the “Private Placement Warrants”) (or up to 10,610,000 Private Placement Warrants if the option to purchase Option Securities as provided in Section 2 herein is exercised in full), upon the terms specified in the Prospectus and the Company entered into a Sponsor Warrants Purchase Agreement, dated as of the date hereof, with the Sponsor (the “Private Placement Agreement”).
On March 8, 2021, the Company issued 8,625,000 shares of its Class B common stock, par value $0.0001 (the “Founder Shares”), to the Sponsor for $25,000 pursuant to a Securities Subscription Agreement, dated March 8, 2021 (the “Original Subscription Agreement”) between the Company and the Sponsor.
The Sponsor has entered into securities transfer agreements dated as of March 10, 2021 or, in the case of one such agreement, March 11, 2021 with each of the Company’s independent director nominees and one of its officers (each, a “Buyer”), pursuant to which the Sponsor transferred 50,000 Founder Shares to one such director nominee, 25,000 Founder Shares to each of two such director nominees and 15,000 Founder Shares to such officer (an aggregate of 115,000 Founder Shares) for a purchase price of $0.003 per share.
The Company and the Sponsor have entered into the Surrender of Shares and Amendment No. 1 to the Securities Subscription Agreement dated November 22, 2021 (the “Surrender and Amendment Agreement;” the Original Subscription Agreement, as amended by the Surrender and Amendment Agreement, is hereinafter called the “Subscription Agreement”), pursuant to which the Sponsor surrendered 2,875,000 Founder Shares to the Company for no consideration, thereby reducing the number of Founder Shares outstanding to 5,750,000 and the aggregate number of Founder Shares owned by the Sponsor to 5,635,000.
The Company has entered into a Registration Rights Agreement, dated as of the date hereof (the “Registration Rights Agreement”), pursuant to which the Company has granted certain registration rights in respect of securities of the Company held by the Sponsor.
The Company has entered into an Investment Management Trust Agreement, dated as of the date hereof (the “Trust Agreement”), with Continental Stock Transfer & Trust Company, as trustee (the “Trustee”), pursuant to which the proceeds from the sale of the Private Placement Warrants and certain proceeds of the sale of the Securities will be deposited and held in a trust account (the “Trust Account”) for the benefit of the Company and the Underwriter.
The Company has entered into a Warrant Agreement, dated as of the date hereof (the “Warrant Agreement”), with respect to the Warrants, the Private Placement Warrants and any warrants issued upon the conversion of working capital loans by the Sponsor, the Company’s officers and directors, or their respective affiliates (the “Working Capital Warrants”) with Continental Stock Transfer & Trust Company, as warrant agent (the “Agent”), pursuant to which the Agent will act as warrant agent in connection with the issuance, registration, transfer, exchange, redemption, and exercise of the Warrants, the Private Placement Warrants and any Working Capital Warrants.
The Company has entered into a letter agreement, dated as of the date hereof (the “Insider Letter”), with the Sponsor and each of the Company’s officers and directors.
The Company has entered into an Administrative Services Agreement, dated as of the date hereof (the “Administrative Support Agreement”), pursuant to which the Sponsor has agreed to provide certain administrative support services to the Company.
SECTION 1. Representations and Warranties.
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, the Applicable Time, the Closing Time and any Date of Delivery, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, at the Applicable Time, the Closing Time and any Date of Delivery, complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriter for use in connection with the offering and sale of the Securities and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(iii) No Free Writing Prospectuses. The Company has not, directly or indirectly, prepared, used or referred to any “free writing prospectus” (as defined in Rule 405 under the 1933 Act).
(vi) Emerging Growth Company Status. From the time of the initial filing of the Registration Statement with the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication), the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).
(ix) No Material Adverse Change. Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company, other than those in the ordinary course of business, which are material with respect to the Company, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(x) Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement, the Trust Agreement, the Warrant Agreement, the Original Subscription Agreement, the Surrender and Amendment Agreement, the Private Placement Agreement, the Registration Rights Agreement, the Insider Letter, and the Administrative Support Agreement (collectively, the “Operative Agreements”) and to carry out the transactions contemplated hereby and thereby; and the Company is duly qualified as a foreign entity to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(xi) Subsidiaries. The Company has no subsidiaries.
(xii) Filing of a Form 8-A. The Company has filed with the Commission a Form 8-A (file number 001-41128) providing for the registration of the Units, the Class A Shares and the Warrants under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations of the Commission promulgated thereunder (collectively, the “1934 Act Regulations”), and such registration is in effect.
(xiii) Capitalization. The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement or pursuant to the exercise of convertible securities, warrants or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company. Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding shares or other ownership interests in the Company or warrants, options or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares or other ownership interests in the Company.
(xiv) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xv) Authorization and Description of Securities, the Class A Shares and the Warrants. The Securities to be purchased by the Underwriter from the Company and the Class A Shares included in the Securities have been duly authorized for issuance and sale to the Underwriter pursuant to this Agreement and, when the Securities are issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, the Securities and the Class A Shares included in the Securities will be duly and validly issued and, in the case of such Class A Shares, fully paid and non-assessable. The certificates for the Securities and the Class A Shares are in due and proper form. The Warrants included in the Securities have been duly authorized for issuance and sale by the Company pursuant to this Agreement and, when the Securities are issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be duly and validly issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting creditors’ rights generally from time to time in effect or by equitable principles of general applicability (collectively, the “Enforceability Exceptions”). The issuance of the Securities, the Class A Shares included in the Securities and the Warrants included in the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company. The Securities, the Class A Shares and the Warrants conform in all material respects to the statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of Securities, Class A Shares or Warrants is or will be subject to personal liability by reason of being such a holder, except to the extent that, as described in the Registration Statement, the General Disclosure Package and the Prospectus, in the event of a dissolution of the Company, a holder of Class A Shares may, under the Delaware General Corporation Law, be held liable for claims of third parties against the Company, with the aggregate amount of such liability not to exceed the amount distributed to such holder by the Company in connection with such dissolution.
(xvi) Authorization and Description of the Private Placement Warrants. The Private Placement Warrants have been duly authorized for issuance and sale by the Company and, when issued and delivered in the manner set forth in the Private Placement Agreement against payment of the consideration set forth therein, will be duly and validly issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by the Enforceability Exceptions. The issuance of the Private Placement Warrants is not subject to preemptive or other similar rights of any securityholder of the Company. The Private Placement Warrants conform to in all material respects to the statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same.
(xvii) Authorization and Description of the Founder Shares. The Founder Shares have been duly authorized for issuance and sale pursuant to the Subscription Agreement and are duly and validly issued, fully paid and non-assessable. The issuance of the Founder Shares was not subject to the preemptive or other similar rights of any securityholder of the Company. The sales of the Founder Shares by the Company to the Sponsor and the sale by the Sponsor of certain Founder Shares to the Buyers were exempt from the registration requirements of the 1933 Act and any applicable other securities and blue sky laws. The Founder Shares conform in all material respects to the statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. Except for Founder Shares transferred and sold to the Buyers as described in this Agreement, the Sponsor has not sold, assigned or otherwise transferred any Founder Shares. Pursuant to the Surrender and Amendment Agreement the Sponsor surrendered 2,875,000 Founder Shares to the Company for no consideration and the Company cancelled those Founder Shares.
(xviii) Authorization of the Class A Shares Issuable Upon Exercise of the Warrants, the Private Placement Warrants and Working Capital Warrants, If Any. The Class A Shares issuable upon exercise of the Warrants, the Private Placement Warrants, and the Working Capital Warrants, if any, have been duly authorized and reserved for issuance upon exercise thereof and, when issued and delivered against payment of the consideration therefor pursuant thereto and the Warrant Agreement, will be duly and validly issued, fully paid and non-assessable. The issuance of such Class A Shares will not be subject to the preemptive or other similar rights of any securityholder of the Company. The holders of such Class A Shares will not be subject to personal liability by reason of being such holders. All corporate action required to be taken for the authorization, issuance and sale of such Class A Shares (other than such execution (if applicable), countersignature (if applicable) and delivery at the time of issuance) has been duly and validly taken.
(xix) Authorization of the Class A Shares Issuable Upon Conversion of the Founder Shares. The Class A Shares issuable upon the conversion of the Founder Shares have been duly authorized and reserved for issuance upon conversion thereof and, when issued and delivered upon such conversion, will be duly and validly issued, fully paid and non-assessable. The issuance of such Class A Shares will not be subject to the preemptive or other similar rights of any securityholder of the Company. The holders of such Class A Shares will not be subject to personal liability by reason of being such holders. All corporate action required to be taken for the authorization, issuance and sale of such Class A Shares (other than such execution (if applicable), countersignature (if applicable) and delivery at the time of issuance) has been duly and validly taken.
(xx) Authorization of the Subscription Agreement, the Private Placement Agreement, the Registration Rights Agreement and the Administrative Support Agreement. Each of the Original Subscription Agreement, the Surrender and Amendment Agreement, the Private Placement Agreement, the Registration Rights Agreement and the Administrative Support Agreement has been duly authorized, executed and delivered by the Company, and the Sponsor and is a valid and legally binding agreement of the Company and the Sponsor, enforceable against the Company and the Sponsor, in accordance with its terms, except as the enforceability thereof may be limited by the Enforceability Exceptions.
(xxi) [Omitted intentionally.]
(xxii) Authorization of the Insider Letter. The Insider Letter has been duly authorized, executed and delivered by the Company, the Sponsor and, to the knowledge of the Company, each officer and director of the Company, respectively, and is a valid and legally binding agreement of the Company, the Sponsor and, to the knowledge of the Company, each such officer and director, respectively, enforceable against the Company, the Sponsor and, to the knowledge of the Company, each such officer and director, respectively, in accordance with its terms, except as the enforceability thereof may be limited by the Enforceability Exceptions.
(xxiii) Authorization of the Trust Agreement and Warrant Agreement. Each of the Trust Agreement and the Warrant Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee and Warrant Agent, respectively, is a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by the Enforceability Exceptions.
(xxiv) Communications with Potential Business Combination Targets. Prior to the date hereof, neither the Company nor anyone on its behalf has, or as of the Closing Time or any Date of Delivery will have, selected any Business Combination target or initiated any substantive discussions, directly or indirectly, with any Business Combination target.
(xxv) Absence of Violations, Defaults and Conflicts. The Company is not (A) in violation of its charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound or to which any of the properties or assets of the Company is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of the Operative Agreements and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company.
(xxvi) Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(xxvii) Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company, which might result in a Material Adverse Effect, or which might materially and adversely affect its properties or assets or the consummation of the transactions contemplated in the Operative Agreements or the performance by the Company of its obligations hereunder and thereunder; and the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its properties, assets or operations is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, could not result in a Material Adverse Effect.
(xxviii) Accuracy of Disclosures. The statements in the Registration Statement, the General Disclosure Package and the Prospectus under the headings “Principal Stockholders,” “Certain Relationships and Related Party Transactions,” and “Description of Securities,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries in all material respects of such legal matters, agreements, documents or proceedings.
(xxix) Description of Related Party Transactions, Contracts and Exhibits. There are no business relationships or related party transactions involving the Company or any other person required by the 1933 Act to be described in the Registration Statement, the General Disclosure Package and the Prospectus that have not been described as required. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xxx) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by the Operative Agreements, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the New York Stock Exchange (the “Exchange”), state and non-U.S. securities and blue sky laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxxi) Compliance with FINRA Rules.
(a) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not made any direct or indirect payments (in cash, securities or any other form of “underwriting compensation,” as defined in Rule 5110 of FINRA’s Conduct Rules and the Supplementary Material to such rule): (i) to any person, as a finder’s fee, consulting and/or advisory fee or otherwise, in consideration of such person (A) raising capital for the Company or introducing to the Company persons who raised capital for or provided capital to the Company or (B) otherwise advising, or providing consulting to, the Company with respect to the offering and sale of the Securities; (ii) to any member of FINRA (a “Member”); or (iii) to any person or entity that has any direct or indirect affiliation or association with any Member, or to any immediate family member of any such associated person (as defined in FINRA Rule 5110), during the 180-day period prior to the initial filing date of the Registration Statement through the date of this Agreement, and the Company does not anticipate making any such payment during the 60-day period following the effective date of the Registration Statement, other than payments to the Underwriter pursuant to this Agreement.
(b) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, during the period beginning 180 days prior to the initial filing date of the Registration Statement and ending on the effectiveness date of the Registration Statement, no Member and/or any person associated or affiliated with a Member has provided any investment banking, financial advisory and/or consulting services to the Company, and the Company does not anticipate making any such payment during the 60-day period following the effective date of the Registration Statement.
(c) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the Company’s knowledge, no officer or director of the Company, or beneficial owner of 10% or more of the outstanding shares of any class of the Company’s equity or equity-linked securities, as defined in FINRA Rule 5110 (whether registered or unregistered, regardless of the time acquired or the source from which derived) (any such individual or entity, a “Company Affiliate”), is a “Participating Member,” as defined in Rule 5110 of FINRA’s Conduct Rules (a “Participating Member”), or a person associated or affiliated with a Participating Member.
(d) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the Company’s knowledge, no Company Affiliate is the beneficial owner of 10% or more of the outstanding equity, including preferred equity, securities of any Participating Member.
(e) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no proceeds from the sale of the Securities (excluding underwriting compensation as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus) will be paid by the Company to any Participating Member or any persons associated or affiliated with a Participating Member.
(f) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not issued any warrants or other securities, or granted any options, directly or indirectly to anyone who is a potential Participating Member in the offering and sale of the Securities within the 180-day period prior to the initial filing date of the Registration Statement through the date of this Agreement, and which is exercisable within 60 days following the Participating Member’s participating in the offering and sale of the Securities.
(g) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the Company’s knowledge, 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 through the date of this Agreement has any affiliation or association with any Participating Member, and the Company does not expect to issue any such securities during the 60-day period following the effective date of the Registration Statement. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no Participating Member has a conflict of interest with the Company as such term is defined in FINRA Rule 5121.
(xxxii) Listing; Compliance with Exchange Rules. The Securities, the Class A Shares and the Warrants have been approved for listing on the Exchange, subject to official notice of issuance. There is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s officers or directors, in their capacities as such, to comply with (as and when applicable), and immediately following the effectiveness date of the Registration Statement the Company and, to the Company’s knowledge, the officers and directors of the Company, in their capacities as such, will be in compliance with the phase-in requirements and all other provisions of the Exchange’s corporate governance requirements set forth in the New York Stock Exchange Listed Company Manual.
(xxxiii) Possession of Licenses and Permits. The Company possesses such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by it, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Company is in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. The Company has not received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxxiv) Title to Property. The Company has good and marketable title to all real property owned by it and good title to all other properties owned by it, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and all of the leases and subleases material to the business of the Company and under which the Company holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and the Company has no notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company to the continued possession of the leased or subleased premises under any such lease or sublease.
(xxxv) Possession of Intellectual Property. The Company owns or possesses, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by it, and the Company has not received any notice and is not otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
(xxxvi) Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A) the Company is not in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company has all permits, authorizations and approvals required under any applicable Environmental Laws and is in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company relating to Hazardous Materials or any Environmental Laws.
(xxxvii) Accounting Controls and Disclosure Controls. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulation) to the extent required under either such Rule. The Company maintains effective disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal period, there has been (1) no material weakness or significant deficiency in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(xxxviii) Compliance with the Xxxxxxxx-Xxxxx Act. Upon the effectiveness of the Registration Statement, the Company will be in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Xxxxxxxx-Xxxxx Act”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement.
(xxxix) Payment of Taxes. Except as would not, individually or in the aggregate, result in a Material Adverse Effect, (i) all United States federal income tax returns of the Company required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, and no assessment in connection therewith has been made against the Company and (ii) Company has filed all other tax returns that are required to have been filed by it pursuant to applicable foreign, state, local or other law and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would, individually or in the aggregate, not result in a Material Adverse Effect.
(xlii) Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in, or which constitutes, a violation of Regulation M under the 1934 Act.
(xliii) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xliv) Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xlv) OFAC. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xlvi) Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of the Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of the Underwriter.
(xlvii) Unlawful Influence. The Company has not offered, or caused the Underwriter to offer, the Securities to any person with the intention of unlawfully influencing (a) a customer or supplier of the Company or any affiliate of the Company to alter the customer’s or supplier’s level or type of business with the Company or such affiliate or (b) a journalist or publication to write or publish favorable information about the Company or any such affiliate.
(xlviii) USA Patriot Act. The Company acknowledges that, in accordance with the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Restrict, Intercept and Obstruct Terrorism Act of 2001 (the “USA Patriot Act”), the Underwriter is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow the Underwriter to properly identify its clients.
(li) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(lii) Cybersecurity. (A) To the knowledge of the Company, there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company, and any such data processed or stored by third parties on behalf of the Company), equipment or technology (collectively, “IT Systems and Data”); (B) the Company has not been notified of, and has no knowledge of, any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data, except as would not, individually or in the aggregate, result in a Material Adverse Effect; and (C) the Company has implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. The Company is presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(liii) No Integration. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not sold, issued or distributed any securities during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the 1933 Act. Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities that are required to be “integrated” pursuant to the 1933 Act with the offering and sale of the Securities pursuant to the Registration Statement.
(liv) “Xxxxx Stock” Securities. Upon delivery and payment for the Securities as of the Closing Time and any Date of Delivery, the Company will not be subject to Rule 419 under the 1933 Act and none of the Company’s outstanding securities will be deemed to be a “xxxxx stock,” as defined in Rule 3a51-1 under the 1934 Act.
(lv) Finder’s or Broker’s Fees. Except pursuant to this Agreement, the Company has not incurred any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or by the Registration Statement.
(lvi) Ownership in Entities. The Company does not own an interest in any corporation, partnership, limited liability company, joint venture, trust or other entity.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(c) Payment. Payment of the Initial Securities shall be made at the offices of Sidley Austin LLP, or at such other place as shall be agreed upon by the Representative and the Company, at 9:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof, or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the Underwriter, payment of the purchase price for such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative and the Company, on each Date of Delivery as specified in the notice from the Representative to the Company.
Payment for the Initial Securities on the Closing Time shall be made as follows: a portion of the net proceeds for the Initial Securities (including the Deferred Discount (as defined below) attributable to the Initial Securities) shall be deposited in the Trust Account pursuant to the terms of the Trust Agreement along with all of the gross proceeds of the sale of the Private Placement Warrants in order for the total amount in the Trust Account to equal the product of the number of Units sold multiplied by $10.15 upon delivery to the Representative of the Initial Securities through the facilities of The Depository Trust Company (“DTC”) or, if the Representative has otherwise instructed, upon delivery to the Representative of certificates (in form and substance satisfactory to the Representative) representing the Initial Securities, in each case for the account of the Underwriter. The Initial Securities shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two business days prior to the Closing Time. If delivery is not made through the facilities of DTC, the Company will permit the Representative to examine and package the Initial Securities for delivery, at least one business day prior to the Closing Time at a location in New York City as the Representative may designate. At least one business day prior to the Closing Time, the Sponsor shall pay for all of the applicable Private Placement Warrants and the Company shall deposit all of the gross proceeds from the sale of such Private Placement Warrants into the Trust Account as provided by the terms of the Private Placement Agreement, and payment by the Underwriter for the Initial Securities is contingent upon such payment by the Sponsor and deposit by the Company at least one business day prior to the Closing Time.
Payment for the Option Securities on each Date of Delivery, if any, shall be made as follows: the purchase price for the Option Securities set forth in Schedule A hereto (including the Deferred Discount attributable to the Option Securities) shall be deposited in the Trust Account pursuant to the terms of the Trust Agreement along with all of the gross proceeds of the sale of the Private Placement Warrants to be purchased by the Sponsor on such Date of Delivery in order for the total amount in the Trust Account (excluding any interest earned on amounts in the Trust Account) to equal the product of the number of Units sold (including Initial Securities and Option Securities) multiplied by $10.15 upon delivery to the Representative of the Option Securities through the facilities of DTC or, if the Representative has otherwise instructed, upon delivery to the Representative of certificates (in form and substance satisfactory to the Representative) representing the Option Securities for the account of the Underwriter. The Option Securities shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two business days prior to the Date of Delivery. If delivery is not made through the facilities of DTC, the Company will permit the Representative to examine and package the Option Securities for delivery, at least one business day prior to the Date of Delivery. At least one business day prior to the applicable Date of Delivery, the Sponsor shall pay for all of the applicable Private Placement Warrants and the Company shall deposit all of the gross proceeds from the sale of such Private Placement Warrants into the Trust Account as provided by the terms of the Private Placement Agreement, and payment by the Underwriter for the applicable Option Securities is contingent upon such payment by the Sponsor and deposit by the Company at least one business day prior to the applicable Date of Delivery.
In addition to the discount from the public offering price represented by the purchase price set forth in Schedule A hereto, the Company hereby agrees to pay to the Underwriter a deferred discount of $0.35 per Security (including both Initial Securities and Option Securities) purchased hereunder (collectively, the “Deferred Discount”). The aggregate amount of the Deferred Discount will be paid directly to the Representative, on behalf of the Underwriter, by the Trustee from amounts on deposit in the Trust Account by wire transfer payable in same-day funds if and when the Company consummates the initial Business Combination, and the Company will deliver all such notices and instructions to the Trustee, and shall take all such other actions, as shall be necessary to cause such payment to be made promptly. The Underwriter hereby agrees that if no Business Combination is consummated within the time period provided in the Company’s charter and the funds held under the Trust Agreement are distributed to the holders (the “Public Shareholders”) of the Class A Shares included in the Securities sold pursuant to this Agreement (the “Public Shares”), (i) the Underwriter will forfeit any rights or claims to the Deferred Discount and (ii) the Trustee under the Trust Agreement is authorized to distribute the Deferred Discount to the Public Shareholders holding Public Shares on a pro rata basis.
SECTION 3. Covenants of the Company. The Company covenants with the Underwriter as follows:
(u) Announcement of the Consummation of the Initial Business Combination. In the event that the Company desires or is required by an applicable law or regulation to cause an announcement (“Business Combination Announcement”) to be placed in The Wall Street Journal, The New York Times or any other news or media publication or outlet or to be made via a public filing or submission with the Commission announcing the consummation of the Business Combination that indicates that the Underwriter was the underwriter in the offering and sale of the Securities, the Company shall supply the Representative with a draft of the Business Combination Announcement and provide the Representative with a reasonable advance opportunity to comment thereon, subject to the agreement of the Underwriter to keep confidential such draft announcement in accordance with the Representative’s standard policies regarding confidential information.
SECTION 4. Payment of Expenses.
SECTION 5. Conditions of Underwriter’s Obligations. The obligations of the Underwriter hereunder are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
SECTION 6. Indemnification.
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Written Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any materials or information, including roadshow materials, provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any road show or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, any Written Testing-the-Waters Communication, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by BofA), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the offering and sale of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriter, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, in connection with the offering and sale of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering and sale of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriter, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus; provided, however, that, notwithstanding the foregoing, (x) the total net proceeds from the offering and sale of the Securities received by the Company shall be deemed to include the total amount of the Deferred Discount except if and when, and only to the extent that, the Deferred Discount or any portion thereof has been actually paid in cash to the Underwriter and (y) the total underwriting discount received by the Underwriter shall exclude the total amount of the Deferred Discount except if and when, and only to the extent that, the Deferred Discount or any portion thereof has been actually paid in cash to the Underwriter.
The relative fault of the Company, on the one hand, and the Underwriter, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be required to contribute any amount in excess of the underwriting discount received by the Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the Underwriter’s Affiliates and selling agents shall have the same rights to contribution as the Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Underwriter or any of its Affiliates or selling agents, any person controlling the Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the Exchange, or (iv) if trading generally on the NYSE MKT or the New York Stock Exchange or in The Nasdaq Global Select Market, The Nasdaq Global Market or The Nasdaq Capital Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) if a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
SECTION 10. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriter shall be directed to BofA at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Syndicate Department (email: xx.xxx_xxxxxxxxx_xxxxxxxx@xxxx.xxx), with a copy to ECM Legal (email: xx.xxx_xxxxx@xxxx.xxx); notices to the Company shall be directed to it at Xxxxxxx Acquisition Company, Attention Xxxxxxx X. Xxxxxxx, 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000, email [***], with a copy to the Company’s counsel at Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Attention Xxxxx X. Xxxxxxx, Esq., 7 World Trade Center, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, email Xxxxx.Xxxxxxx@xxxxxxxxxx.xxx.
SECTION 11. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriter, on the other hand, (b) in connection with the offering and sale of the Securities and the process leading thereto, the Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its shareholders, creditors, employees or any other party, (c) the Underwriter has not assumed or will not assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering and sale of the Securities or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company or any of its affiliates on other matters) and the Underwriter has no obligation to the Company with respect to the offering and sale of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriter and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and (e) the Underwriter has not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering and sale of the Securities and the Company has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate, and (f) none of the activities of the Underwriter in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriter with respect to any entity or natural person.
SECTION 12. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that the Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that the Underwriter that is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 12, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriter and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriter and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriter and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Trial by Jury. Each of the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and affiliates) and the Underwriter hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 16. Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or other proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or other proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
[Signature page follows]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours, | ||
Xxxxxxx Acquisition Company | ||
By | /s/ Xxxxxxx X. Xxxxxxx | |
Name: Xxxxxxx X. Xxxxxxx | ||
Title: President and Chief Executive Officer |
CONFIRMED AND ACCEPTED,
as of the date first above written:
BOFA SECURITIES, INC. | ||
By: | /s/ Xxxxx XxXxxxxx | |
Authorized Signatory |
For itself and as Representative of the Underwriter named in Schedule A hereto.
SCHEDULE A
The initial public offering price for the Securities shall be $10.00 per Security.
The purchase price per share for the Securities to be paid by the Underwriter shall be $9.80 per Security, subject to adjustment, in the case of the Option Securities, in accordance with Section 2(b) for dividends or distributions declared, paid or payable by the Company on the Initial Securities but not payable on the Option Securities.
Name of Underwriter | Number of Initial Securities |
BofA Securities, Inc. | 20,000,000 |
SCHEDULE B-1
Pricing Terms
1. | The Company is selling 20,000,000 Units. |
2. | The Company has granted an option to the Underwriter to purchase up to an additional 3,000,000 Units. |
3. | The initial public offering price for the Securities shall be $10.00 per Security. |
SCHEDULE B-2
Written Testing-the-Waters Communications: Presentation captioned “Xxxxxxx Acquisition Company” and dated November 2021.