3,600,000 Units GSME ACQUISITION PARTNERS I UNDERWRITING AGREEMENT
3,600,000
Units
____________,
2009
Xxxxx
& Company Securities LLC
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX
As
Representative of the Underwriters
named
on Schedule A
hereto
Ladies
and Gentlemen:
GSME
Acquisition Partners I, a Cayman Islands company with limited liability (the
“Company”), hereby
confirms its agreement with Xxxxx & Company Securities, LLC (the “Representative”) and with the
other underwriters named on Schedule
A hereto, for which the Representative is acting as representative (the
Representative, with such other underwriters being collectively referred to
herein as the “Underwriters” or,
individually, an “Underwriter”) as
follows:
1. Purchase and Sale of
Securities.
1.1. Firm
Securities.
1.1.1. Purchase of Firm
Units. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, severally and not jointly,
an aggregate of 3,600,000 units (the “Firm Units”) of the Company’s
securities at a purchase price (net of discounts and commissions) of $9.70 per
Firm Unit subject to the payment to the Representative of the Deferred Discount
(as defined in Section 1.5 hereof) of $0.40 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 A of $9.70 per
Firm Unit subject to the payment to the Representative of the Deferred discount
of $0.40 per Firm Unit pursuant to Section 1.5 hereof.
1.1.2. The
Firm Units are to be offered initially to the public (the “Offering”) at the offering
price of $10.00 per Firm Unit. Each Firm Unit consists of one share
of the Company’s ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), and one
warrant to purchase one Ordinary Share (the “Warrant(s)”). The
Ordinary Shares and the Warrants included in the Firm Units will not be
separately transferable until the tenth (10th)
Business Day (as defined below) after the date of the Prospectus (as defined
herein), unless the Representative determines that an earlier date is
acceptable, subject to the Company’s having filed the Report of Foreign Private
Issuer on Form 6-K and having issued a press release announcing when such
separate trading will begin. In no event will the Ordinary Shares and
Warrants be traded separately until the Company has filed a Report of Foreign
Private Issuer on Form 6-K with the Securities and Exchange Commission (the
“Commission”) containing
an audited balance sheet reflecting its receipt of the gross proceeds of the
Offering. The Company will file the Report of Foreign Private Issuer
on Form 6-K promptly upon the consummation of the Offering, which is anticipated
to take place within four (4) Business Days from the date of the
Prospectus. As used herein, the term “Business Day” shall mean any
day other than a Saturday, Sunday or any day on which national banks in New
York, New York are not open for business.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 2 of
45
1.1.3. Each
Warrant shall entitle its holder to purchase one Ordinary Share for $11.50 per
share during the period commencing on the later of: (i) the consummation by the
Company of a Business Combination (as defined below) or (ii) one year from the
effective date (the “Effective
Date”) of the Registration Statement (as defined below) and terminating
on the five-year anniversary of the Effective Date. As used herein, the
term “Business
Combination” shall mean the Company’s acquisition of one or more assets
or operating businesses having primary operations in the People’s Republic of
China through a capital merger, share exchange, asset or share acquisition,
exchangeable share transaction, contractual control arrangement or other similar
business combination. The Company has the right to redeem the
Warrants, in whole but not in part, upon not less than thirty (30) days’ prior
written notice at a price of $0.01 per Warrant at any time after the Warrants
become exercisable; provided, however, that the last sale price of the Ordinary
Shares has been at least $17.50 for any twenty (20) trading days within a thirty
(30) trading day period ending on the third (3rd)
Business Day prior to the day on which notice is delivered.
1.1.4. Payment and
Delivery. Delivery and payment for the Firm Units shall be made at
10:00 A.M., New York time, on the third (3rd)
Business Day following the Effective Date (or the fourth (4th)
Business Day following the Effective Date, if the Registration Statement is
declared effective after 4:30 p.m.) or at such earlier time as shall be agreed
upon by the Representative and the Company at the offices of the Representative
or at such other place as shall be agreed upon by the Representative and the
Company. The closing of the Offering is referred to herein as the “Closing” and the hour and date
of delivery and payment for the Firm Units is referred to herein as the “Closing Date.” Payment
for the Firm Units shall be made on the Closing Date through the facilities of
[ ]
by wire transfer in Federal (same day) funds. An aggregate of
$36,000,000 of the proceeds received by the Company for the Firm Units and the
Private Placement (as defined in Section 1.4) shall be deposited into the trust
account (the “Trust
Account”) established by the Company for the benefit of the Public
Shareholders (as defined below) and the Underwriters, as described in the
Registration Statement and pursuant to the terms of an Investment Management
Trust Agreement (the “Trust
Agreement”), which amount includes up to $1,440,000 ($0.40 per Firm
Unit), payable to the Underwriters as deferred compensation upon consummation of
a Business Combination (subject to Section 1.5 hereof). The remaining
proceeds (less commissions and actual expense payments or other fees payable
pursuant to this Agreement), if any, shall be paid to the order of the Company
upon delivery to the Representative of certificates (in form and substance
satisfactory to the Underwriters) representing the Firm Units (or through the
facilities of the Depository Trust Company (the “DTC”)) for the account of the
Underwriters. The Firm Units shall be registered in such name or names and
in such authorized denominations as the Representative may request in writing at
least two (2) Business Days prior to the Closing Date. The Company will
permit the Representative to examine and package the Firm Units for delivery, at
least one (1) 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. As used herein,
the term “Public
Shareholders” means the holders of Ordinary Shares sold as part of the
Units in the Offering or acquired in the aftermarket, including any Company
shareholder prior to the Offering to the extent they acquire such Ordinary
Shares in the aftermarket (and solely with respect to such Ordinary
Shares).
Xxxxx
& Company Securities, LLC
___________,
2009
Page 3 of
45
1.2. Representative’s Purchase
Option. The Company hereby agrees to issue and sell to the
Representatives (and/or their designees) on the Closing Date an option (“Representative’s Purchase
Option”) to purchase up to an aggregate of 360,000 units (the “Representative’s Units”) for
an aggregate purchase price of $100.00. The Representative’s Purchase
Option shall be exercisable, in whole or in part, commencing on the later of the
consummation of a Business Combination or six months from the Effective Date and
expiring on the five-year anniversary of the Effective Date at an initial
exercise price per Representative’s Unit of $8.80, which is equal to one hundred
ten percent (110%) of the initial public offering price of a Unit. The
Company shall deliver to the Representatives, upon payment therefor,
certificates for the Representative’s Purchase Option in the name or names and
in such denominations as the Representative may request. The
Representative’s Purchase Option, the Representative’s Units, the Ordinary
Shares (the “Representative’s
Shares”) and the Warrants (the “Representative’s Warrants”)
included in the Representative’s Units and the Ordinary Shares issuable upon
exercise of the Representative’s Warrants are hereinafter referred to
collectively as the “Representative’s
Securities.” The Public Securities, the Representative’s
Securities, the Placement Securities and the Insider Shares (as defined in
Section 1.3.1) are hereinafter referred to collectively as the “Securities.”
1.3. Private
Placements.
1.3.1. On
March [xx], 2008, the Company issued to certain persons and entities referenced
in Part II, Item 7 of the Registration Statement (collectively, the “Insider Shareholders”), for aggregate
consideration of $25,000, 1,035,000 (the “Insider Shares”) in a private
placement (the “Insider Private
Placement”) intended to be exempt from registration under Section 4(2) of
the Securities Act of 1933, as amended (the “Act”). No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the Insider Private Placement. None of the
Insider Shares may be sold, assigned or transferred by the Insider Shareholders
until the earlier of: (i) with respect to 20% of such Insider Shares, upon
consummation of the Business Combination, (ii) with respect to 20% of such
Insider Shares, when the closing price of the Company’s Ordinary Shares exceeds
$12 for any 20 trading days within a 30-trading day period following the
consummation of the Business Combination; (iii) with respect to 20% of the
Insider Shares, when the closing price of the Company’s Ordinary Shares exceeds
$14.00 for any 20 trading days within a 30-trading day period following the
consummation of the Business Combination; (iii) with respect to 20% of the
Insider Shares, when the closing price of the Company’s Ordinary Shares exceeds
$16.00 for any 20 trading days within a 30-trading day period following the
consummation of the Business Combination; and (iii) with respect to 20% of the
Insider Shares, when the closing price of the Company’s Ordinary Shares exceeds
$20.00 for any 20 trading days within a 30-trading day period following the
consummation of the Business Combination. The Insider Shareholders
shall have no right to any liquidation distributions with respect to any portion
of the Insider Shares in the event the Company fails to consummate a Business
Combination. The Insider Shareholders shall not have conversion
rights with respect to the Insider Shares
Xxxxx
& Company Securities, LLC
___________,
2009
Page 4 of
45
1.3.2. Prior
to the Effective Date, certain directors and officers of the Company and their
affiliates (collectively, the “Placement Investors”)
purchased from the Company pursuant to the Subscription Agreement (as defined in
Section 2.25.2 hereof), 3,600,000 warrants (the “Placement Warrants”) at a
purchase price of $0.50 per Placement Warrant in a private placement (the “Private Placement”) intended
to be exempt from registration under the Act. The Placement Warrants
and Ordinary Shares issuable upon exercise of the Placement Warrants are
hereinafter referred to collectively as the “Placement Securities.” No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the Private Placement. None of the
Placement Securities may be sold, assigned or transferred by the Placement
Investors until sixty (60) days after consummation of a Business
Combination. The Placement Investors shall have no right to any
liquidation distributions with respect to any portion of the Placement
Securities in the event the Company fails to consummate a Business
Combination. The Placement Investors shall not have conversion rights
with respect to the Placement Securities.
1.4. Deferred Portion of
Underwriters’ Discount. The Representative, on behalf of itself and the
other Underwriters, agrees that 4% of the gross proceeds from the sale of the
Firm Units ($1,440,000) (the “Deferred Discount”) will be
deposited in and held in the Trust Account and payable, without reduction, to
the Representative upon consummation of the Company’s Business
Combination. In the event that the Company is unable to consummate a
Business Combination and Continental Stock Transfer & Trust Company (in this
context, the “Trustee”),
the trustee of the Trust Account, commences liquidation of the Trust Account as
provided in the Trust Agreement, the Representative, on behalf of itself and the
other Underwriters, agrees that: (i) the several Underwriters shall forfeit any
rights or claims to the Deferred Discount; and (ii) the Deferred Discount,
together with all other amounts on deposit in the Trust Account, shall be
distributed on a pro-rata basis among the holders of the IPO
Shares.
|
|
1.5. Working Capital;
Interest on Trust.
|
1.5.1. Working
Capital. Upon consummation of the Offering, $150,000, [of the
net proceeds of the Private Placement] will be released to the Company to fund
the working capital requirements of the Company.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 5 of
45
1.5.2. Interest Income.
Prior to the Company’s consummation of a business combination or the Company’s
liquidation, interest earned on the Trust Account may be released (i) to the
Company to pay any taxes incurred by the Company, and (ii) to the Company, from
time to time, to fund its working capital and general corporate requirements, as
more fully described in the Prospectus.
2. Representations and
Warranties of the Company. The Company represents and warrants to
the Underwriters as follows:
2.1. Filing of Registration
Statement.
2.1.1. Pursuant to the
Act. The Company has filed with the Commission a registration
statement and an amendment or amendments thereto, on Form F-1 (File No.
333-__________), including any related preliminary prospectus (the “Preliminary Prospectus”,
including any prospectus that is included in the Registration Statement
immediately prior to the effectiveness of the Registration Statement), for the
registration of the Public Securities and the Representative’s Securities under
the 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 F-1 to register
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 included in the
Registration Statement (or, if applicable, the form of final prospectus
containing information permitted to be omitted at the time of effectiveness by
Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of
the Regulations), is hereinafter called the “Prospectus.” For
purposes of this Agreement, “Time of Sale”, as used in the
Act, means 5:00 p.m., New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared
preliminary prospectuses, dated ____________, for distribution by the
Underwriters (together 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 under
the Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the Securities
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. If, subsequent to the date of this
Agreement, the Company or the Representative has determined that at the
Time of Sale the Sale Preliminary Prospectus included an untrue statement of a
material fact or omitted a statement of material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and have agreed to provide an opportunity to purchasers of
the Firm Units to terminate their old purchase contracts and enter into new
purchase contracts, then the Sale Preliminary Prospectus will be deemed to
include any additional information available to purchasers at the time of entry
into the first such new purchase contract.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 6
of 45
2.1.2. Pursuant to the Exchange
Act. The Company has filed with the Commission a Form 8-A (File
Number 001-________) providing for the registration under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), of the Units,
the Ordinary Shares and the Warrants. The registration of the Units,
Ordinary Shares and Warrants under the Exchange Act has been declared effective
by the Commission on the date hereof.
2.2. No Stop Orders,
etc. Neither the Commission nor, to the Company’s knowledge, any
foreign or state regulatory authority has issued any order or threatened to
issue any order preventing or suspending the use of any Sale Preliminary
Prospectus or Prospectus or has instituted or, to the best of the Company’s
knowledge, threatened to institute any proceedings with respect to such an
order.
2.3. Disclosures in Registration
Statement.
2.3.1. 10b-5
Representation. At the time of effectiveness of the Registration
Statement (or at the time any post-effective amendment to the Registration
Statement) and at all times subsequent thereto up to the Closing Date, the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
contained or will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and did or will, in all
material respects, conform to the requirements of the Act and the
Regulations. Neither the Registration Statement, the Sale Preliminary
Prospectus nor any Preliminary Prospectus or the Prospectus contained therein,
nor any amendment or supplement thereto, on their respective dates, nor the Sale
Preliminary Prospectus as of the Time of Sale did or will contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein (in light of the
circumstances under which they were made), not misleading. When any
Preliminary Prospectus or Sale Preliminary Prospectus was first filed with the
Commission (whether filed as part of the Registration Statement for the
registration of the Securities or any amendment thereto or pursuant to Rule
424(a) of the Regulations) and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus or Sale
Preliminary Prospectus and any amendments thereof and supplements thereto
complied or will have been corrected in the Sale Preliminary Prospectus and the
Prospectus to comply in all material respects with the applicable provisions of
the Act and the Regulations and did not and will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
representation and warranty made in this Section 2.3.1 does not apply to
statements made or statements omitted in reliance upon and in conformity with
written information furnished to the Company with respect to the Underwriters by
the Representative expressly for use in the Registration Statement, the Sale
Preliminary Prospectus or Prospectus or any amendment thereof or supplement
thereto, which information, it is agreed, shall consist solely of the names of
the several Underwriters and the subsections captioned “Pricing of Securities”
and “Foreign Regulatory
Restrictions on Purchase of the Units” contained in the section
of the Prospectus entitled “Underwriting.”
Xxxxx
& Company Securities, LLC
___________,
2009
Page 7 of
45
2.3.2. Disclosure of
Agreements. The agreements and documents described in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
conform to the descriptions thereof contained therein and there are no
agreements or other documents required to be described in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus or to be filed with
the Commission as exhibits to the Registration Statement, that have not been so
described or filed. Each agreement or other instrument (however
characterized or described) to which the Company is a party or by which its
property or business is or may be bound or affected and (i) that is referred to
in the Registration Statement or attached as an exhibit thereto, or (ii) is
material to the Company’s business, has been duly and validly executed by the
Company, is in full force and effect in all material respects and is enforceable
against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the foreign, federal and state securities laws,
and (z) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought, and
none of such agreements or instruments has been assigned by the Company, and
neither the Company nor, to the Company’s knowledge, any other party is in
breach or default thereunder and, to the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a breach or default thereunder. To the Company’s knowledge,
performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its assets
or businesses, including, without limitation, those relating to environmental
laws and regulations.
2.3.3. Prior Securities
Transactions. No securities of the Company have been sold by the
Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company since the
date of the Company’s formation, except as disclosed in the Registration
Statement.
2.3.4. Regulations. The
disclosures in the Registration Statement, the Sale Preliminary Prospectus and
the Prospectus concerning the effects of foreign, federal, state and local
regulation on the Company’s business as currently contemplated are correct in
all material respects and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 8 of
45
2.4. Changes After Dates in
Registration Statement.
2.4.1. No Material Adverse
Change. Since the respective dates as of which information is given
in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus, except as otherwise specifically stated therein: (i) there has been
no material adverse change in the condition, financial or otherwise, or business
prospects of the Company; (ii) there have been no material transactions entered
into by the Company, other than as contemplated pursuant to this Agreement;
(iii) no member of the Company’s board of directors or management has resigned
from any position with the Company and (iv) no event or occurrence has taken
place which materially impairs, or would likely materially impair, with the
passage of time, the ability of the members of the Company’s board of directors
or management to act in their capacities with the Company as described in the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus.
2.4.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of
which information is given in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus and except as may otherwise be indicated or
contemplated herein or therein, the Company has not: (i) issued any securities
or incurred any liability or obligation, direct or contingent, for borrowed
money; or (ii) declared or paid any dividend or made any other distribution
on or in respect to its capital stock.
2.5. Independent
Accountants. Xxxxx Xxxxxxx, LLP (“Xxxxx”), whose report is filed
with the Commission as part of the Registration Statement and included in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus, are
independent registered public accountants as required by the Act, the
Regulations and the Public Company Accounting Oversight Board (including the
rules and regulations promulgated by such entity, the “PCAOB”). To the
Company’s knowledge, Xxxxx is duly registered and in good standing with the
PCAOB. Xxxxx has not, during the periods covered by the financial
statements included in the Registration Statement, the 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.
2.6. Financial Statements;
Statistical Data.
2.6.1. Financial
Statements. The financial statements, including the notes
thereto and supporting schedules included in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus, fairly present the financial
position and the results of operations of the Company at the dates and for the
periods to which they apply; and such financial statements have been prepared in
conformity with the Regulations, consistently applied throughout the periods
involved; and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein in conformity with
the Regulations. No other financial statements or supporting schedules are
required to be included or incorporated by reference in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus. The
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
disclose all material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), and other relationships of the Company with
unconsolidated entities or other persons that may have a material current or
future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses. There
are no pro forma or as adjusted financial statements which are required to be
included in the Registration Statement, the Sale Preliminary Prospectus or the
Prospectus in accordance with Regulation S-X of the Regulations which have not
been included as so required.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 9
of 45
2.6.2. Statistical
Data. The statistical, industry-related and market-related
data included in the Registration Statement, the Sale Preliminary Prospectus
and/or the Prospectus are based on or derived from sources which the Company
reasonably and in good faith believes are reliable and accurate, and such data
agree with the sources from which they are derived.
2.7. Authorized Capital; Options,
etc. The Company had at the date or dates indicated in each of the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus, as
the case may be, 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 Ordinary
Shares or any security convertible into Ordinary Shares, or any contracts or
commitments to issue or sell Ordinary Shares or any such options, warrants,
rights or convertible securities.
2.8. Valid Issuance of
Securities, etc.
2.8.1. Outstanding
Securities. All issued and outstanding Ordinary Shares of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; the holders thereof have no rights of rescission with respect
thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company. The outstanding Ordinary Shares
conform to the descriptions thereof contained in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus. All offers, sales and any
transfers of the outstanding Ordinary Shares of the Company were at all relevant
times either registered under the Act and the applicable state securities or
Blue Sky laws or exempt from such registration requirements.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 10 of
45
2.8.2. Securities
Sold. The Securities have been duly authorized and reserved
for issuance and when issued and paid for, will be validly issued, fully paid
and non-assessable; the holders thereof are not and will not be subject to
personal liability by reason of being such holders; the Securities are not and
will not be subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization, issuance and sale
of the Securities has been duly and validly taken. The Securities conform
in all material respects to the descriptions thereof contained in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus, as
the case may be. When issued, the Representative’s Purchase Option, the
Representative’s Warrants and the Warrants will constitute valid and binding
obligations of the Company to issue and sell, upon exercise thereof and payment
of the respective exercise prices therefor, the number and type of securities of
the Company called for thereby in accordance with the terms thereof and such
Representative’s Purchase Option, Representative’s Warrants and Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under foreign, 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 Ordinary Shares
issuable upon exercise of the Representative’s Purchase Option, the
Representative’s Warrants and the Warrants have been reserved for issuance upon
the exercise of the Warrant upon payment of the consideration therefore, and
when issued in accordance with the terms thereof, 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.
2.8.3. Insider and Placement
Warrants. The Insider Warrants and 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 such Insider Warrants and 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 foreign, 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 Ordinary Shares
issuable upon exercise of the Insider Warrants and the Placement Warrants have
been reserved and, when issued in accordance with the terms of the Insider
Warrants and the Placement Warrants, will be duly and validly authorized,
validly issued, fully paid and non-assessable, and the holders thereof are not
and will not be subject to personal liability by reason of being such holders
..
2.8.4. No
Integration. Neither the Company nor any of its affiliates
has, prior to the date hereof, made any offer or sale of any securities which
are required to be “integrated” pursuant to the Act or the Regulations with the
offer and sale of the Securities pursuant to the Registration
Statement.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 11 of
45
2.9. Registration Rights of Third
Parties. Except as set forth in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus, no holders of any securities of
the Company or any rights exercisable for or convertible or exchangeable into
securities of the Company have the right to require the Company to register any
such securities of the Company under the Act or to include any such securities
in a registration statement to be filed by the Company.
2.10. Validity and Binding Effect
of Agreements. This Agreement, the Warrant Agreement (as defined in
Section 2.24 hereof), the Trust Agreement, the Subscription Agreement (as
defined in Section 2.25.2 hereof), the Representative’s Purchase Option (as
defined in Section 1.2), the Escrow Agreement (as defined in Section 2.25.3
hereof) and the Registration Rights Agreement by and among the Company and the
Insider Shareholders (the “Registration Rights
Agreement”) have been duly and validly authorized, executed and delivered
by the Company and constitute 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 foreign, federal and state 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.
2.11. No Conflicts,
etc. The execution, delivery, and performance by the Company of
this Agreement, the Warrant Agreement, the Trust Agreement, the Subscription
Agreement, the Representative’s Purchase Option, the Escrow Agreement and the
Registration Rights Agreement, 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 or
violation 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, obligation, condition, covenant
or instrument to which the Company is a party or bound or to which its property
is subject except pursuant to the Trust Agreement; (ii) result in any violation
of the provisions of the Amended and Restated Memorandum and Articles of
Association of the Company; or (iii) violate any existing applicable statute,
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.
2.12. No Defaults;
Violations. No material default or violation exists in the due
performance and observance of any term, covenant or condition of any material
license, contract, indenture, mortgage, deed of trust, note, loan or credit
agreement, or any other agreement or instrument evidencing an obligation for
borrowed money, or any other material agreement or instrument to which the
Company is a party or by which the Company may be bound or to which any of the
properties or assets of the Company is subject. The Company is not in violation
of any term or provision of its Amended and Restated Memorandum and Articles of
Association or in violation of any material franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of
its properties or businesses.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 12 of
45
2.13. Corporate Power; Licenses;
Consents.
2.13.1. Conduct of
Business. The Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and
bodies that it needs as of the date hereof to conduct its business for the
purposes described in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus. The disclosures in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus concerning the
effects of foreign, federal, state and local regulation on this Offering and the
Company’s business purpose as currently contemplated are correct in all material
respects and do not omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Since its
formation, the Company has conducted no business and has incurred no liabilities
other than in connection with and in furtherance of the Offering.
2.13.2. Transactions Contemplated
Herein. The Company has all corporate power and authority to enter
into this Agreement and to carry out the provisions and conditions hereof, and
all consents, authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or order of, and
no filing with, any court, government agency or other body, foreign or domestic,
is required for the valid issuance, sale and delivery, of the Securities and the
consummation of the transactions and agreements contemplated by this Agreement,
the Warrant Agreement, the Trust Agreement, the Services Agreement, the
Representative’s Purchase Option, the Registration Rights Agreement and the
Escrow Agreement and as contemplated by the Registration Statement, the Sale
Preliminary Prospectus and Prospectus, except with respect to applicable
foreign, federal and state securities laws and the rules and regulations
promulgated by the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.14. D&O
Questionnaires. All information contained in the
questionnaires, as updated and confirmed (the “Questionnaires”) completed by
each of the Company’s officers and directors (the “Directors/Officers”)
immediately prior to the Offering and provided to the Representative as well as
the biographies attached as exhibits to each person’s Insider Letter (as defined
in Section 2.25.1) is true and correct in all material respects and the
Company has not become aware of any information which would cause the
information disclosed in the questionnaires completed by the Directors/Officers
to become inaccurate and incorrect.
2.15. Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or, to
the best of the Company’s knowledge, threatened against, or involving the
Company or, to the best of the Company’s knowledge, any of the
Directors/Officers or any of the Insider Shareholders which has not been
disclosed in the Registration Statement, the Questionnaires, the Sale
Preliminary Prospectus and the Prospectus.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 13 of
45
2.16. Good Standing.
The Company has been duly organized and is validly existing as a corporation and
is in good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification, except where the failure to qualify
would not have a material adverse effect on the condition (financial or
otherwise), validity of the Trust Account, directors, officers, prospects (as
such prospects are described in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus), business or properties of the Company (a “Material Adverse
Effect”).
2.17. No Contemplation of a
Business Combination. Prior to the date hereof, no Company
Affiliate (as hereinafter defined) has, and as of the Closing, the Company and
such Company Affiliates will not have: (a) had any specific Business Combination
under consideration or contemplation; (b) directly or indirectly, contacted any
potential operating assets, business or businesses which the Company may seek to
acquire (each, a “Target
Business”) or any owner, officer, director, manager, agent or
representative thereof or had any substantive discussions, formal or otherwise,
with respect to effecting any potential Business Combination with the Company or
taken any measure, directly or indirectly to locate a Target Business; or (c)
engaged or retained any agent or other representative to identify or locate any
Target Business for the Company.
2.18. Transactions Affecting
Disclosure to FINRA.
2.18.1. Except
as described in the Registration Statement, the Sale Preliminary Prospectus and
the Prospectus, 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 Company Affiliate with respect to the sale of the
Securities hereunder or any other arrangements, agreements or understandings of
the Company or, to the Company’s knowledge, any Initial Shareholder that may
affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing
to the Company persons who raised or provided capital to the Company; (ii) to
any FINRA member; or (iii) to any person or entity that has any direct or
indirect affiliation or association with any FINRA member, within the twelve
months prior to the Effective Date, other than payments to the Representative in
connection with the Offering.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 14 of
45
2.18.3. To
the Company’s knowledge, other than
[ ],
no Officer or Director or any direct or indirect beneficial owner of any class
of the Company’s securities, including the Insider Shareholders and holders of
securities purchased in the Private Placement (whether debt or equity,
registered or unregistered, regardless of the time acquired or the source from
which derived) (any such individual or entity, a “Company Affiliate”) is a
member, a person associated, or affiliated with a member of FINRA.
2.18.4. To
the Company’s knowledge, other than
[ ],
no Company Affiliate is an owner of stock or other securities of any member of
FINRA (other than securities purchased on the open market).
2.18.5. To
the Company’s knowledge, no Company Affiliate has made a subordinated loan to
any member of FINRA.
2.18.6. No
proceeds from the sale of the Public Securities (excluding underwriting
compensation), the Representative’s Securities, the Placement Securities or the
Insider Shares will be paid to any FINRA member, or any persons associated or
affiliated with a member of FINRA, except as specifically authorized
herein.
2.18.7. Except
with respect to the Representative, the Company has not issued any warrants or
other securities, or granted any options, directly or indirectly to anyone who
is a potential underwriter in the Offering or a related person (as defined by
FINRA rules) of such an underwriter within the 180-day period prior to the
initial filing date of the Registration Statement.
2.18.8. 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 has any relationship or affiliation or association
with any member of FINRA.
2.18.9. No
FINRA member intending to participate in the Offering has a conflict of interest
with the Company. For this purpose, a “conflict of interest” exists
when a member of FINRA and/or its associated persons, parent or affiliates in
the aggregate beneficially own 10% or more of the Company’s outstanding
subordinated debt or common equity, or 10% or more of the Company’s preferred
equity. “Members participating in the Offering” include managing
agents, syndicate group members and all dealers which are members of
FINRA.
2.18.10. Except
with respect to the Representative in connection with the Offering, the Company
has not entered into any agreement or arrangement (including, without
limitation, any consulting agreement or any other type of agreement) during the
180-day period prior to the initial filing date of the Registration Statement,
which arrangement or agreement provides for the receipt of any item of value
and/or the transfer or issuance of any warrants, options, or other securities
from the Company to a FINRA member, any person associated with a member (as
defined by FINRA rules), any potential underwriters in the Offering and/or any
related persons.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 15 of
45
2.19. Taxes.
2.19.1.
There are no transfer taxes or other similar fees or charges under Cayman
Islands law, U.S. federal law or the laws of any U.S. state or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance or sale by the Company of the
Securities.
2.19.2.
The Company has filed all non-U.S., U.S. federal, state and local tax returns
that are required to be a filed or has requested extensions thereof, except in
any case in which the failure to so file would not have a Material Adverse
Effect, and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing in due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not have a Material
Adverse Effect.
2.20. Foreign Corrupt Practices
Act. Neither the Company nor any of the Company Affiliates or any
other person acting on behalf of the Company is aware of or has taken any
action, directly or indirectly, that: (i) 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”) or otherwise subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding; (ii) if not done in the past, might have had a
Material Adverse Effect or (iii) if not continued in the future, might adversely
affect the assets, business, operations or prospects of the Company, including,
without limitation, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary course of
business) to any customer, supplier, employee or agent of a customer or
supplier, or official or employee of any governmental agency or instrumentality
of any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or any political party or candidate for office
(domestic or foreign) or other person who was, is, or may be in a position to
help or hinder the business of the Company (or assist it in connection with any
actual or proposed transaction). The Company’s internal accounting
controls and procedures are sufficient to cause the Company to comply with the
Foreign Corrupt Practices Act of 1977, as amended.
2.21. Currency and Foreign
Transactions Reporting Act. 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 Transaction
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 agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the
Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 16 of
45
2.22. Patriot
Act. To the Company’s knowledge, neither the Company nor any
Company Affiliate has violated: (i) the Bank Secrecy Act, as amended, or (iii)
the Uniting and Strengthening of America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and/or the
rules and regulations promulgated under any such law, or any successor
law.
2.23. Officers’
Certificate. Any certificate signed by any duly authorized officer
of the Company and delivered to the Representative or to its counsel shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
2.24. Warrant
Agreement. The Company has entered into a warrant agreement with
respect to the Warrants with Continental Stock Transfer & Trust Company
substantially in the form filed as an exhibit to the Registration Statement (the
“Warrant
Agreement”).
2.25. Agreements With Company
Affiliates.
2.25.1. Insider
Letters. The Company has caused to be duly executed legally binding
and enforceable agreements (except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (ii) as enforceability of any indemnification, contribution or
non-compete provision may be limited under foreign, 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)
annexed as exhibits to the Registration Statement (the “Insider Letter”), pursuant to
which each of the Company Affiliates agrees to certain matters, including but
not limited to, the voting of Ordinary Shares held by them and
certain matters described as being agreed to by them under the “Proposed
Business” Section of the Registration Statement, the Sale Preliminary
Prospectus and Prospectus.
2.25.2. Subscription
Agreement. The Placement Investors have executed and delivered
a subscription agreement, annexed as an exhibit to the Registration Statement
(the “Subscription Agreement”), pursuant to which the Placement Investors have,
among other things, purchased 3,600,000 Placement Warrants in the Private
Placement. Pursuant to the Subscription Agreement, the Placement
Investors have waived any and all rights and claims they may have to any
proceeds, and any interest thereon, held in the Trust Account in respect of the
Placement Securities in the event that a Business Combination is not consummated
and the Trust Account is liquidated in accordance with the terms of the Trust
Agreement.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 17 of
45
2.25.3. Escrow
Agreement. The Company has caused the Insider Shareholders and
Placement Investors, to the extent they own Insider Shares or Placement Warrants
prior to the Offering (or acquire the same simultaneously with the Offering), to
enter into an escrow agreement (the “Escrow Agreement”) with
Continental Stock Transfer & Trust Company (the “Escrow Agent”) substantially
in the form filed as an exhibit to the Registration Statement whereby the
Ordinary Shares and Warrants owned by such parties prior to the Offering will be
held in escrow by the Escrow Agent for a period (the “Escrow Period”) commencing on
the Effective Date and (A) for the Insider Shares, will not be released from
escrow until (i) with respect to 20% of such Insider Shares, upon consummation
of the Business Combination, (ii) with respect to 20% of such Insider Shares,
when the closing price of the Company’s Ordinary Shares exceeds $12 for any 20
trading days within a 30-trading day period following the consummation of the
Business Combination; (iii) with respect to 20% of the Insider Shares, when the
closing price of the Company’s Ordinary Shares exceeds $14.00 for any 20 trading
days within a 30-trading day period following the consummation of the Business
Combination; (iii) with respect to 20% of the Insider Shares, when the closing
price of the Company’s Ordinary Shares exceeds $16.00 for any 20 trading days
within a 30-trading day period following the consummation of the Business
Combination; and (iii) with respect to 20% of the Insider Shares, when the
closing price of the Company’s Ordinary Shares exceeds $20.00 for any 20 trading
days within a 30-trading day period following the consummation of the Business
Combination; and (B) for the Placement Warrants, will not be released from
escrow until sixty (60) days following the Company’s Business
Combination. During the Escrow Period, such parties shall be
prohibited from selling or otherwise transferring such securities, except: (a)
(i) transfers to an entity’s members upon its liquidation, (ii) to relatives and
trusts for estate planning purposes, (iii) by virtue of the laws of descent and
distribution upon death, (iv) pursuant to a qualified domestic relations order,
(v) by certain pledges to secure obligations incurred in connection with
purchases of our securities or (vi) by private sales made at or prior to the
consummation of a business combination at prices no greater than the price at
which the shares were originally purchased, in each case where the transferee
agrees to the terms of the escrow agreement, or (b) after the consummation
of a Business Combination in a transaction whereby all the outstanding Ordinary
Shares of the Company are exchanged or converted into cash or another entity’s
securities; provided,
however, such Insider Shareholders shall retain the right to vote such
Ordinary Shares, as applicable. To the Company’s knowledge, the Escrow
Agreement is enforceable against each of the Insider Shareholders and will not,
with or without the giving of notice or the lapse of time or both, result in a
breach of, or conflict with, any of the terms and provisions of, or constitute a
default under, an agreement or instrument to which any of the Insider
Shareholders is a party. The Escrow Agreement shall not be amended,
modified or otherwise changed without the prior written consent of the
Representative, such consent not to be unreasonably withheld.
2.25.4.
No Director/Officer (as defined below) is subject to any non-competition
agreement or non-solicitation agreement with any employer or prior employer
which could materially affect his ability to be and act in the capacity of a
Director/Officer of the Company.
2.26. Investment Management Trust
Agreement. The Company has entered into the Trust Agreement with
respect to certain proceeds of the Offering and the Private Placement
substantially in the form filed as an exhibit to the Registration
Statement.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 18 of
45
2.27. Covenants Not to
Compete. No Company Affiliate is subject to any noncompetition
agreement or non-solicitation agreement with any employer or prior employer
which could materially affect his ability to be a director, officer or employee
of the Company.
2.28. Investments. No
more than 45% of the “value” (as defined in Section 2(a)(41) of the
Investment Company Act of 1940 (“Investment Company Act”)) of
the Company’s total assets (exclusive of cash items and “Government Securities,”
as defined in Section 2(a)(16) of the Investment Company Act) consist of, and no
more than 45% of the Company’s net income after taxes is derived from,
securities other than Government Securities.
2.29. Investment Company
Act. The Company is not required, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to
register as an “investment company” under the Investment Company
Act.
2.30. Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.31. Related Party
Transactions. No relationship, direct or indirect, exists between
or among any of the Company or any Company Affiliate, on the one hand, and any
director, officer, shareholder, customer or supplier of the Company or any
Company Affiliate, on the other hand, which is required by the Act, the Exchange
Act or the Regulations to be described in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus which is not so described as
required. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. The Company has not extended or maintained credit,
arranged for the extension of credit, or renewed an extension of credit, in the
form of a personal loan to or for any director or officer of the
Company.
2.32. No
Influence. The Company has not offered, or caused the
Underwriters to offer, the Firm Units to any person or entity with the intention
of unlawfully influencing: (a) a customer or supplier of the Company or any
affiliate of the Company to alter the customer’s or supplier’s level or type of
business with the Company or such affiliate or (b) a journalist or publication
to write or publish favorable information about the Company or any such
affiliate.
2.33. Xxxxxxxx-Xxxxx. The
Company is in material compliance with the provisions of the Xxxxxxxx-Xxxxx Act
of 2002, as amended, and the rules and regulations promulgated thereunder and
related or similar rules and regulations promulgated by any governmental or self
regulatory entity or agency, that are applicable to it as of the date
hereof.
2.34. Quotation of the Public
Securities on the OTC Bulletin
Board. As of the Effective Date, the Public Securities have
been authorized for quotation on the OTC Bulletin Board and, to the
Company’s knowledge, no proceedings have been instituted or threatened which
would effect, and no event or circumstance has occurred as of the Effective Date
which is reasonably likely to effect, the quotation of the Public Securities on
the OTC Bulletin Board.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 19 of
45
2.35. Definition of
“Knowledge”. As used in herein, the term “knowledge of the Company” (or
similar language) shall mean the knowledge of the officers and directors of the
Company who are named in the Sale Preliminary Prospectus and Prospectus, with
the assumption that such officers and directors shall have made reasonable and
diligent inquiry of the matters presented.
3. Covenants of the
Company. The Company covenants and agrees as follows:
3.1. Amendments to Registration
Statement. The Company will deliver to the Representative, prior to
filing, any amendment or supplement to the Registration Statement or Prospectus
proposed to be filed after the Effective Date and shall not file any such
amendment or supplement to which the Representative shall reasonably object in
writing.
3.2. Federal Securities
Laws.
3.2.1. Compliance.
During the time when a prospectus is required to be delivered under the Act, the
Company will use 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. If at any time
when a Prospectus relating to the Public Securities is required to be delivered
under the Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Underwriters, the Sale
Preliminary Prospectus and 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 during such period to amend the Registration Statement or amend
or supplement the Sale Preliminary Prospectus and Prospectus to comply with the
Act, the Company will notify the Representative promptly and prepare and file
with the Commission, subject to Section 3.1 hereof, an appropriate
amendment to the Registration Statement or amendment or supplement to the Sale
Preliminary Prospectus and Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
3.2.2. Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Representative) with the Commission pursuant to
the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act
Registration. For a period of five years from the Effective Date,
or until such earlier time upon which the Company is required to be liquidated
and dissolved, the Company will use its best efforts to maintain the
registration of the Units, Ordinary Shares and Warrants (in the case of the
Units and the Warrants, until the Warrants expire and are no longer exercisable
or have been exercised in full) under the provisions of the Exchange Act.
The Company will not deregister the Units, Ordinary Shares or Warrants under the
Exchange Act without the prior written consent of the
Representative.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 20 of
45
3.2.4. Exchange Act
Filings. From the Effective Date until the earlier of the
Company’s initial Business Combination, or its liquidation and dissolution, the
Company shall timely file with the Commission via the Electronic Data Gathering,
Analysis and Retrieval System (“XXXXX”) such statements and
reports as are required to be filed by a company registered under Section 12(g)
of the Exchange Act, as if the Company were a company incorporated in the United
States (it being agreed, however, that with respect to quarterly and annual
financial information, the Company may furnish such information on Form 6-K or
Form 20-F, as the case may be, and with respect to proxy solicitation materials
a preliminary proxy statement shall not be required to be filed with the
Commission or delivered to the Company’s shareholders).
3.2.5. Xxxxxxxx-Xxxxx
Compliance. As soon as it is legally required to do so, the
Company shall take all actions necessary to obtain and thereafter maintain
material compliance with each applicable provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated thereunder and related or similar
rules and regulations promulgated by any other governmental or self regulatory
entity or agency with jurisdiction over the Company.
3.3. Blue Sky
Filing. Unless the Securities are listed or quoted, as the case may
be, on the New York Stock Exchange, the Nasdaq Stock Market or the NYSE American
Stock Exchange (“AMEX”),
the Company will endeavor in good faith, in cooperation with the Representative,
at or prior to the time the Registration Statement becomes effective, to qualify
the Public Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may reasonably designate, provided that no
such qualification shall be required in any jurisdiction where, as a result
thereof, the Company would be subject to service of general process or to
taxation as a foreign corporation doing business in such jurisdiction. In
each jurisdiction where such qualification shall be effected, the Company will,
unless the Representative agrees that such action is not at the time necessary
or advisable, use all reasonable efforts to file and make such statements or
reports at such times as are or may be required by the laws of such
jurisdiction.
3.4. Delivery of Materials to
Underwriters. The Company will deliver to each of the several
Underwriters, without charge and from time to time during the period when a
prospectus is required to be delivered under the Act or the Exchange Act, such
number of copies of each Sale Preliminary Prospectus, the Prospectus and all
amendments and supplements to such documents as such Underwriters may reasonably
request and, as soon as the Registration Statement or any amendment or
supplement thereto becomes effective, deliver to the Representative two manually
executed Registration Statements, including exhibits, and all post-effective
amendments thereto and copies of all exhibits filed therewith or incorporated
therein by reference and all manually executed consents of certified
experts.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 21 of
45
3.5. Effectiveness and Events
Requiring Notice to the Representative. The Company will use its
best efforts to cause the Registration Statement to remain effective and will
notify the Representative immediately and confirm the notice in writing:
(i) of the effectiveness of the Registration Statement and any amendment
thereto; (ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or any post-effective amendment
thereto or preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or of the initiation, or the threatening, of any proceeding for that
purpose; (iii) of the issuance by any foreign or 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 3.4 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 and Prospectus in
order to make the statements therein, (with respect to the Prospectus and the
Sale Preliminary Prospectus and in light of the circumstances under which they
were made), not misleading. If the Commission or any foreign or state
securities commission shall enter a stop order or suspend such qualification at
any time, the Company will make every reasonable effort to obtain promptly the
lifting of such order.
3.6. Review of Financial
Statements. Until the earlier of five years from the Effective
Date, or until such earlier time upon which the Company is required to be
liquidated and dissolved, the Company, at its expense, shall cause its regularly
engaged independent certified public accountants to review (but not audit) the
Company’s financial statements for each of the first three fiscal quarters prior
to the announcement of quarterly financial information and the filing of the
Company’s Report on Form 6-K with respect to its quarterly results.
3.7. Affiliated
Transactions.
3.7.1. Business
Combinations. The Company will not consummate a Business
Combination with any entity which is affiliated with any Company Affiliate
unless the Company obtains an opinion from an independent investment banking
firm that the Business Combination is fair to the Company’s shareholders from a
financial perspective.
3.7.2. Administrative
Services. Omitted
Xxxxx
& Company Securities, LLC
___________,
2009
Page 22 of
45
3.7.3. Compensation.
Except as otherwise set forth in this Section 3.7, the Company shall not
pay any Initial Shareholder or Company Affiliate or any of their affiliates any
fees or compensation from the Company, for services rendered to the Company
prior to, or in connection with, this Offering or the consummation of a Business
Combination; provided
that the Company’s directors and officers shall be entitled to
reimbursement from the Company for their out-of-pocket expenses incurred on the
Company’s behalf, and other expenses incurred by them in connection with seeking
and consummating a Business Combination.
3.8. Secondary Market Trading and
Standard & Poor’s. In the event the Public Securities are
not listed on the New York Stock Exchange, the Nasdaq Stock Market or AMEX: (a)
the Company will apply to be included in Standard and Poor’s Daily News and
Corporation Records Corporate Descriptions for a period commencing on the
Effective Date and expiring on the fifth anniversary of the consummation of a
Business Combination, (b) the Company shall take such steps as may be necessary
to obtain a secondary market trading exemption for the Company’s securities in
such jurisdictions as may be requested by the Representative; provided, however,
no qualification shall be required in any jurisdiction where, as a result
thereof, the Company would be subject to service of general process or to
taxation as a foreign corporation doing business in such
jurisdiction. The Company shall also take such other action as may be
reasonably requested by the Representative to obtain a secondary market trading
exemption in such other states as may be requested by the
Representative.
3.9. Financial Public Relations
Firm. Promptly after the execution of a definitive agreement for a
Business Combination, the Company shall retain a financial public relations firm
reasonably acceptable to the Representative for a term to be agreed upon by the
Company and the Representative.
3.10. Reports to the
Representative.
3.10.1. Periodic Reports,
etc. For a period of five years from the Effective Date or until
such earlier time upon which the Company is required to be liquidated and
dissolved, the Company will furnish to the Representative and its counsel copies
of such financial statements and other periodic and special reports as the
Company from time to time furnishes generally to holders of any class of its
securities, and promptly furnish to the Representative: (i) a copy of each
periodic report the Company shall be required to file with the Commission; (ii)
a copy of every press release and every news item and article with respect
to the Company or its affairs which was released by the Company; (iii) a
copy of each Report of Foreign Private Issuer on Form 6-K or Schedules 13D, 13G,
14D-1 or 13E-4 received or prepared by the Company; (iv) five copies of each
registration statement filed by the Company with the Commission under the
Securities Act; and (v) such additional documents and information with
respect to the Company and the affairs of any future subsidiaries of the Company
as the Representative may from time to time reasonably request; provided that
the Representative shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and its counsel in connection with the Representative’s receipt
of such information. Documents filed with the Commission pursuant to
XXXXX shall be deemed to have been delivered to the Representative pursuant to
this section.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 23 of
45
3.10.2. Secondary Market Trading
Survey. So long as the Public Securities are not listed or
quoted, as the case may be, on the New York Stock Exchange, the Nasdaq Stock
Market or AMEX, or until such earlier time upon which the Company is required to
be liquidated, the Company shall engage Xxxxxxxx Xxxxxx LLP (“GM”), for a one-time fee of
$5,000 payable on the Closing Date, to deliver and update to the Underwriters on
a timely basis, but in any event on the Effective Date and at the beginning of
each fiscal quarter a written report detailing those states in which the Public
Securities may be traded in non-issuer transactions under the Blue Sky laws of
the fifty States (the “Secondary Market Trading
Survey”).
3.11. Disqualification of Form F-1
and F-3 and/or S-1 and S-3. For a period equal to seven years from the
date hereof, the Company will not take any action or actions which may prevent
or disqualify the Company’s use of Form F-1 or F-3 and/or Form S-1 and S-3 (or
other appropriate form) for the registration of the Warrants under the
Act.
3.12. Payment of
Expenses.
3.12.1. General Expenses Related to
the Offering. The Company hereby agrees to pay on the Closing Date
all fees and 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, the Sale Preliminary
Prospectus, and the final Prospectus and mailing of this Agreement and related
documents, including the cost of all copies thereof and any amendments thereof
or supplements thereto supplied to the Underwriters in quantities as may be
required by the Underwriters; (ii) the printing, engraving, issuance and
delivery of the Units, the Ordinary Shares and the Warrants included in the
Units, including any transfer or other taxes payable thereon; (iii) filing fees,
costs and expenses (excluding the Representative’s counsel fees) incurred in
registering the Offering with FINRA (including all COBRADesk fees); (iv) fees
and disbursements of the transfer and warrant agent; (v) the preparation and
delivery of transaction lucite cubes or similar commemorative items in a style
and quantity as reasonably requested by the Representative; (vi) all costs and
expenses of the Company associated with “road show” marketing and “due
diligence” trips for the Company’s management to meet with prospective
investors, including without limitation, all travel, food and lodging expenses
associated with such trips incurred by the Company or such management; and (vi)
all other reasonable costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section 3.12.1. The Representative may deduct from the net
proceeds of the Offering payable to the Company on the Closing Date the expenses
set forth above (which shall be mutually agreed upon between the Company and the
Representative prior to Closing) to be paid by the Company to the Representative
and others. If the Offering is not consummated for any reason
whatsoever, then the Company shall reimburse the Representative in full for
their respective out of pocket accountable expenses actually incurred through
such date, less the Advance, including, without limitation, fees of counsel to
the Representative (which legal fees shall not exceed
$[150,000]). [If the Offering is not completed for any reason,
[ ]
shall return such portion of the Advance that exceeds the Representative’s
actual accountable out of pocket expenses incurred.]
Xxxxx
& Company Securities, LLC
___________,
2009
Page 24 of
45
3.12.2. Deferred
Discount on
Business Combination. Upon consummation of a Business
Combination, the Company further agrees that in addition to the expenses payable
pursuant to Sections 3.12.1, it will pay to the Underwriters the Deferred
Discount, subject to Section 1.5 hereof.
3.13. Application of Net
Proceeds. The Company will apply the net proceeds from the Private
Placement and this Offering received by it in a manner substantially consistent
with the application described under the caption “Use of Proceeds” in the
Prospectus.
3.14. Delivery of Earnings
Statements to Security Holders. The Company will make generally
available to its security holders as soon as practicable, but not later than the
first day of the fifteenth full calendar month following the Effective Date, an
earnings statement (which need not be certified by independent public or
independent certified public accountants unless required by the Act or the
Regulations, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Act) covering a period of at least twelve consecutive
months beginning after the Effective Date.
3.15. Notice to
FINRA.
3.15.1. Business
Combination. In the event any person or entity (regardless of
any FINRA affiliation or association) is engaged to assist the Company in its
search for a Business Combination candidate or to provide any similar Business
Combination-related services, the Company will provide the following information
(the “Business Combination
Information”) to FINRA and the Representative within no less than thirty
(30) days prior to the consummation of the Business Combination:
(i) complete details of all services and copies of agreements governing
such services; and (ii) justification as to why the person or entity
providing the Business Combination-related services should not be considered an
“underwriter and related person” with respect to the Company’s initial public
offering, as such term is defined in Rule 5110 of FINRA’s Conduct Rules.
The Company also agrees that proper disclosure of such arrangement or
potential arrangement will be made in the proxy statement which the Company will
file for purposes of soliciting shareholder approval for the Business
Combination. Upon the Company’s delivery of the Business Combination
Information to the Representative, the Company hereby expressly authorizes the
Representative to provide such information directly to FINRA as a result of
representations the Representative have made to FINRA in connection with the
Offering.
3.15.2. Broker/Dealer. In
the event the Company intends to register as a broker/dealer, merge with or
acquire a registered broker/dealer, or otherwise become a member of FINRA, it
shall promptly notify FINRA.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 25 of
45
3.16. Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Representative) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.17. Internal
Controls. From and after the Closing Date, the Company will
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary in order to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
3.18. Accountants.
For a period of five years from the Effective Date or until such earlier time
upon which the Company is required to be liquidated, the Company shall retain
Xxxxx or other independent public accountants reasonably acceptable to the
Representative.
3.19. Form 6-K’s. The
Company shall, on the date hereof, retain its independent public accountants to
audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”)
reflecting the receipt by the Company of the proceeds of the Offering and
Private Placement. Within three (3) business days of the Closing Date, the
Company shall file a Report of Foreign Private Issuer on Form 6-K (or Form 6-K,
if applicable) with the Commission, which Report shall contain the Company’s
Audited Financial Statements.
3.20. FINRA. The
Company shall advise FINRA if it is aware that any 5% or greater shareholder of
the Company becomes an affiliate or associated person of a FINRA member
participating in the distribution of the Securities.
3.21. Corporate
Proceedings. All corporate proceedings and other legal matters necessary
to carry out the provisions of this Agreement and the transactions contemplated
hereby shall have been done to the reasonable satisfaction to counsel for the
Underwriters.
3.22. Investment Company.
The Company shall cause the proceeds of the Offering to be held in the Trust
Account to be invested only in “government securities” with specific maturity
dates or in money market funds meeting certain conditions under Rule 2a-7
promulgated under the Investment Company Act as set forth in the Trust Agreement
and disclosed in the Prospectus. The Company will otherwise conduct its business
in a manner so that it will not become subject to the Investment Company Act.
Furthermore, once the Company consummates a Business Combination, it will be
engaged in a business other than that of investing, reinvesting, owning, holding
or trading securities.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 26 of
45
3.23. Press
Releases. The Company agrees that it will not issue press
releases or engage in any other publicity, without the Representative’s prior
written consent (not to be unreasonably withheld), for a period of ninety (90)
days after the Closing Date.
3.24. Insurance. The
Company will maintain insurance of the types and in the amounts which are
customary for companies engaged in similar businesses, including, but not
limited to: (i) directors’ and officers’ insurance (including insurance covering
the Company, its directors and officers for liabilities or losses arising in
connection with this Offering, including, without limitation, liabilities or
losses arising under the Act, the Exchange Act, the Rules and Regulations and
applicable foreign securities laws), (ii) insurance covering real and personal
property owned or leased by the Company against theft, damage, destruction, acts
of vandalism and all other risks customarily insured against, and (iii) business
interruption insurance. The Company has not been refused any
insurance coverage sought or applied for, and the Company has no reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect. The Company shall be the sole beneficiary of
each such policy.
3.25. Electronic
Prospectus. The Company shall cause to
be prepared and delivered to the Representative, at its expense, within one (1)
Business Day from the effective date of this Agreement, an Electronic Prospectus to be used by the Underwriters in
connection with the Offering. As used herein, the term “Electronic Prospectus” means a
form of prospectus, and any amendment or supplement thereto, that meets each of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representative, that may be transmitted electronically by
the other Underwriters to offerees and purchasers of the Units for at least the
period during which a Prospectus relating to the Units is required to be
delivered under the Securities Act; (ii) it shall disclose the same information
as the paper prospectus and prospectus filed pursuant to XXXXX, except to the
extent that graphic and image material cannot be disseminated electronically, in
which case such graphic and image material shall be replaced in the electronic
prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or
convertible into a paper format or an electronic format, satisfactory to the
Representative, that will allow recipients thereof to store and have
continuously ready access to the prospectus at any future time, without charge
to such recipients (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it
has included or will include in the Prospectus filed pursuant to XXXXX or
otherwise with the Commission and in the Registration Statement at the time it
was declared effective an undertaking that, upon receipt of a request by an investor or his or her
Representative within the period when a prospectus relating to the Units is
required to be delivered under the Securities Act, the Company shall transmit or
cause to be transmitted promptly, without charge, a paper copy of the
Prospectus.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 27 of
45
3.26. Reservation of
Shares. The Company will reserve and keep available that
maximum number of its authorized but unissued securities which are issuable upon
exercise of the Warrants and the Representative’s Securities outstanding from
time to time.
3.27. Private Placement
Proceeds. Immediately prior to the Effective Date, the Private
Placement shall be consummated and prior to the Closing Date, the Placement
Investors shall deposit the full purchase price amount of $1,800,000 into the
Trust Account and shall provide the Representative with evidence of the
same.
3.28. No Amendment to
Charter. The Company covenants and
agrees that it will not seek to amend or modify Articles [____] through [____]
of its Amended and Restated Memorandum and Articles of Association during the
Target Business Acquisition Period (as such term is defined in the Amended and
Restated Memorandum and Articles of Association).
3.28.1. The
Company acknowledges that the purchasers of the Firm Units in the Offering shall
be deemed to be third party beneficiaries of this Section 3.28.
3.28.2. The
Representative and the Company specifically agree that, except pursuant to its
own terms, this Section 3.28 shall not be modified or amended in any
way.
3.29. Future
Financings. The Company agrees that neither it, nor any
successor or subsidiary of the Company, will consummate any public or private
equity or debt financing prior to or in connection with the consummation of a
Business Combination, unless all investors in such financing expressly waive, in
writing, any rights in or claims against the Trust Account.
3.30. Content of Business
Combination Notice. In connection with seeking the approval by
vote of Public Shareholders for a proposed Business Combination as contemplated
by the Prospectus, the Company will furnish to all Public Shareholders all
notices of such vote required by Cayman Islands law and all other applicable
laws, rules and regulations. Such notice shall contain, among other
matters: (i) a description of the operations and management of the Target
Business, (ii) the regulatory environment in which such Target Business
operates, (iii) a recitation of risk factors associated with the Target Business
and the proposed Business Combination and (iv) audited or unaudited, as
appropriate, historical financial statements of the Target
Business. Such notice and all such information shall be presented in
a manner substantially similar in form and content to notices and proxy
statements that would be provided to Public Shareholders if the proposed
Business Combination vote were governed by the proxy rules of the United States
federal securities laws.
3.31. [Reserved]
3.32. Listing on the OTC Bulletin
Board. The Company will use its best efforts to maintain the
quotation of the Public Securities on the OTC Bulletin Board or a national
securities exchange for a period of at least five (5) years from the date of
this Agreement.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 28 of
45
4. Conditions of Underwriters’
Obligations. The obligations of the several Underwriters to
purchase and pay for the Units, as provided herein, shall be subject to the
continuing accuracy of the representations and warranties of the Company as of
the date hereof and as of the Closing Date to the accuracy of the statements of
officers of the Company made pursuant to the provisions hereof and to the
performance by the Company of its obligations hereunder and to the following
conditions:
4.1. Regulatory
Matters.
4.1.1. Effectiveness of
Registration Statement. The Registration Statement shall have
become effective not later than 5:00 p.m., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by the
Representative, and, at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of Ellenoff Xxxxxxxx & Schole LLP (“EG&S”), as counsel to the
Underwriters.
4.1.2. FINRA
Clearance. By the Effective Date, the Representative shall have
received clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriters as described in the Registration
Statement.
4.1.3. No Commission Stop
Order. At the Closing Date, the Commission has not issued any
order or threatened to issue any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any part thereof, and has not
instituted or threatened to institute any proceedings with respect to such an
order.
4.1.4. No Blue Sky Stop
Orders. No order suspending the sale of the Units in any
jurisdiction designated by the Representative pursuant to Section 3.3
hereof shall have been issued on the Closing Date, and no proceedings for that
purpose shall have been instituted or shall be contemplated.
4.1.5. OTC Bulletin Board
Listing. The Public Securities shall have been approved for
quotation on the OTC Bulletin Board.
4.2. Company Counsel
Matters.
4.2.1. Closing Date Opinion of
Counsel. On the Closing Date, the Representative shall have
received the favorable opinions of Xxxxxxxx Xxxxxx and Xxxxxxx Xxxxxx, each
dated as of the Closing Date, addressed to the Representative and in forms
attached as Exhibits
A and B
hereto, respectively.
4.2.2 Reliance. In
rendering such opinion, such counsel may rely: (i) as to matters involving the
application of laws other than the laws of the United States and jurisdictions
in which they are admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to the Representative) of other
counsel reasonably acceptable to the Representative, familiar with the
applicable laws; and (ii) as to matters of fact, to the extent they deem
proper, on certificates or other written statements of officers of the Company
and officers of departments of various jurisdiction having custody of documents
respecting the corporate existence or good standing of the Company, provided
that copies of any such statements or certificates shall be delivered to the
Underwriters’ counsel if requested. The opinion of counsel for the Company
and any opinion relied upon by such counsel for the Company shall include a
statement to the effect that it may be relied upon by counsel for the
Underwriters in its opinion delivered to the Underwriters.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 29 of
45
4.3. Cold Comfort
Letter. At the time this Agreement is executed, and at the Closing
Date, the Representative shall have received a letter, addressed to the
Representative and in form and substance satisfactory in all respects (including
the non-material nature of the changes or decreases, if any, referred to in
clause (iii) below) to the Representative and to EG&S from Xxxxx dated,
respectively, as of the date of this Agreement and as of the Closing
Date:
(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 Registration
Statement, the 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 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 a limited 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 shareholders 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 later than five days prior to the Effective
Date or 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 shareholders’
equity of the Company as compared with amounts shown in the ___________ 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 ___________ to a specified date not later than two (2)
days prior to the Effective Date or Closing Date, as the case may be, there was
any decrease in revenues, net earnings or net earnings per Ordinary Share, 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 and the Prospectus,
or, if there was any such decrease, setting forth the amount of such
decrease;
Xxxxx
& Company Securities, LLC
___________,
2009
Page 30 of
45
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company;
(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 during the immediately preceding five year period 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 the
Representative may reasonably request.
4.4. Officers’
Certificates.
4.4.1. Officers’
Certificate. As of the Closing Date, the Representative shall have
received a certificate of the Company signed by the Chairman of the Board or the
President and the Secretary or Assistant Secretary of the Company, respectively,
to the effect that the Company has performed all covenants and complied with all
conditions required by this Agreement to be performed or complied with by the
Company prior to and as of the Closing Date and that the conditions set forth in
Section 4.5 hereof have been satisfied as of such date and that, as of
Closing Date, the representations and warranties of the Company set forth in
Section 2 hereof are true and correct. In addition, the
Representative will have received such other and further certificates of
officers of the Company as the Representative may reasonably
request.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 31 of
45
4.4.2. Secretary’s
Certificate. As of the Closing Date, the Representative shall have
received a certificate of the Company signed by the Secretary or Assistant
Secretary of the Company, respectively, certifying: (i) that the Amended and
Restated Memorandum and Articles of Association of the Company are true and
complete, have not been modified and are in full force and effect; (ii) that the
resolutions relating to the public offering contemplated by this Agreement are
in full force and effect and have not been modified; (iii) all correspondence
between the Company or its counsel and the Commission; and (iv) as to the
incumbency of the officers of the Company. The documents referred to in
such certificate shall be attached to such certificate.
4.5. No Material
Changes. Prior to the Closing Date: (i) there shall have been no
material adverse change or development involving a prospective material adverse
change in the condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such condition is
set forth in the Registration Statement, the Sale Preliminary Prospectus and
Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have
been pending or threatened against the Company or any Company Affiliate before
or by any court or foreign, federal or state commission, board or other
administrative agency wherein an unfavorable decision, ruling or finding may
materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration
Statement, the Sale Preliminary Prospectus and Prospectus; (iii) no stop order
shall have been issued under the Act and no proceedings therefor shall have been
initiated or threatened by the Commission; and (iv) the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto shall contain all material statements which are required to
be stated therein in accordance with the Act and the Regulations and shall
conform in all material respects to the requirements of the Act and the
Regulations, and none of the Registration Statement, the Sale Preliminary
Prospectus or the Prospectus, or any amendment or supplement thereto shall
contain any 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 the case of the Sale Preliminary Prospectus and Prospectus, in light of the
circumstances under which they were made), not misleading.
4.6. Delivery of
Agreements.
4.6.1. Effective Date
Deliveries. On the Effective Date, the Company shall have delivered
to the Representative executed copies of the Escrow Agreement, the Trust
Agreement, the Warrant Agreement, and all of the Insider Letters.
4.6.2. Closing Date
Deliveries. On the Closing Date, the Company shall have delivered
to the Representative, the Representative’s Purchase Option.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 32 of
45
5. Indemnification.
5.1. Indemnification of
Underwriters.
5.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify and
hold harmless each of the Underwriters and each dealer selected by the
Representative that participates in the offer and sale of the Units (each a
“Selected Dealer”) and
each of their respective directors, officers and employees and each person, if
any, who controls any such Underwriter or Selected Dealer (“Controlling Person”) within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
and its counsel, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between any of the Underwriters and the Company or
between any of the Underwriters and any third party or otherwise) to which they
or any of them may become subject under the Act, the Exchange Act or any other
foreign, federal, state or local statute, law, rule, regulation or ordinance or
at common law or otherwise or under the laws, rules and regulation of foreign
countries, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in (i) any Preliminary Prospectus, the
Registration Statement, or the Prospectus (as from time to time each may be
amended and supplemented); (ii) in any post-effective amendment or amendments or
any new registration statement and prospectus relating to any the securities of
the Company described herein; or (iii) any application or other document or
written communication (in this Section 5 collectively called “application”) executed by the
Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Units under the securities laws thereof or
filed with the Commission, any foreign or state securities commission or agency,
the Nasdaq Stock Market, the AMEX, the OTC Bulletin Board or any securities
exchange; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon and in conformity
with written information furnished to the Company with respect to an Underwriter
by or on behalf of such Underwriter expressly for use in any Preliminary
Prospectus, the Registration Statement the Prospectus or any amendment or
supplement thereof, or in any application, as the case may be, which furnished
written information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. With respect to any
untrue statement or omission or alleged untrue statement or omission made in the
Preliminary Prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact
that a copy of the Prospectus was not given or sent to the person asserting any
such loss, liability, claim or damage at or prior to the written confirmation of
sale of the Securities to such person as required by the Act and the
Regulations, and if the untrue statement or omission has been corrected in the
Prospectus, unless such failure to deliver the Prospectus was a result of
non-compliance by the Company with its obligations under Section 3.4
hereof. The Company agrees promptly to notify the Representative of
the commencement of any litigation or proceedings against the Company or any of
its officers, directors or controlling persons in connection with the issue and
sale of the Securities or in connection with the Preliminary Prospectus, the
Registration Statement or the Prospectus.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 33 of
45
5.1.2. Procedure. If
any action is brought against an Underwriter or controlling person in respect of
which indemnity may be sought against the Company pursuant to
Section 5.1.1, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the Company shall assume the
defense of such action, including the employment and fees of counsel (subject to
the reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless: (i) the employment of such counsel at the expense of the Company
shall have been authorized in writing by the Company in connection with the
defense of such action; (ii) the Company shall not have employed counsel to have
charge of the defense of such action; or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events the reasonable fees and expenses of not more than one additional firm of
attorneys selected by the Underwriter and/or controlling person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein,
if the Underwriter or controlling person shall assume the defense of such action
as provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably
withheld.
5.2. Indemnification of the
Company. Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, officers, and employees
and agents who control the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and its counsel, against any and all
loss, liability, claim, damage and expense described in the foregoing indemnity
from the Company to the several Underwriters, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto, or in any application, in reliance upon,
and in strict conformity with, written information furnished to the Company with
respect to such Underwriter by or on behalf of the Underwriter expressly for use
in such Registration Statement, Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or in any such application, which furnished
written information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. In case any action shall
be brought against the Company or any other person so indemnified based on any
Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to the several Underwriters
by the provisions of Section 5.1.2.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 34 of
45
5.3. Contribution.
5.3.1. Contribution
Rights. In order to provide for just and equitable contribution
under the Act in any case in which (i) any person entitled to
indemnification under this Section 5 makes claim for indemnification
pursuant hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be required on the
part of any such person in circumstances for which indemnification is provided
under this Section 5, then, and in each such case, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial offering price appearing thereon and the Company
is responsible for the balance; provided, that, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this
Section 5.3.1, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Public Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section, each director, officer and
employee of an Underwriter or the Company, as applicable, and each person, if
any, who controls an Underwriter or the Company, as applicable, within the
meaning of Section 15 of the Act shall have the same rights to contribution
as the Underwriters or the Company, as applicable.
5.3.2. Contribution
Procedure. Within fifteen days after receipt by any party to this
Agreement (or its representatives) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (“contributing party”), notify
the contributing party of the commencement thereof, but the omission to so
notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representatives of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available. The Underwriters’
obligations to contribute pursuant to this Section 5.3 are several and not
joint.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 35 of
45
6. Default by an
Underwriter.
6.1. Default Not Exceeding 10% of
Firm Units. If any Underwriter or Underwriters shall default in its
or their obligations to purchase the Firm Units and if the number of the Firm
Units with respect to which such default relates does not exceed in the
aggregate 10% of the number of Firm Units that all Underwriters have agreed to
purchase hereunder, then such Firm Units to which the default relates shall be
purchased by the non-defaulting Underwriters in proportion to their respective
commitments hereunder.
6.2. Default Exceeding 10% of
Firm Units. In the event that the default addressed in Section 6.1
above relates to more than 10% of the Firm Units, the Representative may, in
their discretion, arrange for the Representative or for another party or parties
to purchase such Firm Units to which such default relates on the terms contained
herein. If within one (1) Business Day after such default relating to more
than 10% of the Firm Units the Representative do not arrange for the purchase of
such Firm Units, then the Company shall be entitled to a further period of one
(1) Business Day within which to procure another party or parties satisfactory
to the Representative to purchase said Firm Units on such terms. In the
event that neither the Representative nor the Company arrange for the purchase
of the Firm Units to which a default relates as provided in this Section 6,
this Agreement may be terminated by the Representative or the Company without
liability on the part of the Company (except as provided in Sections 3.12 and 5
hereof) or the several Underwriters (except as provided in Section 5
hereof); provided that
nothing herein shall relieve a defaulting Underwriter of its liability, if any,
to the other several Underwriters and to the Company for damages occasioned by
its default hereunder.
6.3. Postponement of Closing
Date. In the event that the Firm Units to which the default relates
are to be purchased by the non-defaulting Underwriters, or are to be purchased
by another party or parties as aforesaid, the Representative or the Company
shall have the right to postpone the Closing Date for a reasonable period, but
not in any event exceeding five (5) Business Days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement and/or the
Prospectus, as the case may be, or in any other documents and arrangements, and
the Company agrees to file promptly any amendment to, or to supplement, the
Registration Statement and/or the Prospectus, as the case may be, that in the
opinion of counsel for the Underwriters may thereby be made
necessary. The term “Underwriter” as used in this Agreement shall
include any party substituted under this Section 6 with like effect as if
it had originally been a party to this Agreement with respect to such
Securities.
7. Additional
Covenants.
7.1. Additional Shares or
Options. The Company hereby agrees that until the Company
consummates a Business Combination, it shall not issue any Ordinary Shares or
any options or other securities convertible into Ordinary Shares or any shares
of Preferred Stock which participate in any manner in the Trust Account or which
vote as a class with the Ordinary Shares on a Business
Combination.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 36 of
45
7.2. Trust Account Waiver
Acknowledgments. The Company hereby agrees that it will not
commence its due diligence investigation of any Target Business or
obtain the services of any vendor unless and until such Target Business or
vendor acknowledges in writing, whether through a letter of intent, memorandum
of understanding or other similar document (and subsequently acknowledges the
same in any definitive document replacing any of the foregoing), that (a) it has
read the Prospectus and understands that the Company has established the Trust
Account, initially in an amount of $36,000,000 for the benefit of the Public
Shareholders and that, except for 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 Shareholders in the event of the conversion of their shares or the
dissolution and liquidation of the Trust Account as part of the Company’s plan
of dissolution and liquidation or (ii) to the Company after it consummates a
Business Combination and (b) for and in consideration of the Company (1)
agreeing to evaluate such Target Business for purposes of consummating a
Business Combination with it or (2) agreeing to engage the services of the
vendor, as the case may be, such Target Business or vendor agrees that it does
not have any right, title, interest or claim of any kind in or to any monies of
the Trust Account (“Claim”) and waives any Claim
it may have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with the Company and will not seek recourse against the
Trust Account for any reason whatsoever. The foregoing letters shall
substantially be in the form attached hereto as Exhibit
C and D,
respectively.
7.3. Insider
Letters. The Company shall not take any action or omit to take any
action which would cause a breach of any of the Insider Letters executed between
each Company Affiliate and the Representative and will not allow any amendments
to, or waivers of, such Insider Letters without the prior written consent of the
Representative.
7.4. Amended and Restated
Memorandum and Articles of Association. The Company shall not take
any action or omit to take any action that would cause the Company to be in
breach or violation of its Amended and Restated Memorandum and Articles of
Association. Prior to the consummation of a Business Combination, the
Company will not amend its Amended and Restated Memorandum and Articles of
Association without the prior written consent of the
Representative.
7.5. Proxy and Other
Information. The Company shall provide the Representative with
copies of all proxy and other information and all related material sent to
Public Shareholders in connection with a Business Combination.
7.6. Acquisition/Liquidation
Procedure.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 37 of
45
7.6.1. The
Company agrees: (i) that, prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s shareholders for their approval
(“Business Combination
Vote”) even if the nature of the acquisition is such as would not
ordinarily require shareholder approval under applicable law; and (ii) that, in
the event that the Company does not effect a Business Combination by the
termination date of the Company’s corporate existence (the “Termination Date”), the
Company shall take all action necessary to dissolve the Company and liquidate
the Trust Account to holders of IPO Shares as soon as reasonably practicable,
subject to the requirements of the laws of the Cayman Islands. Upon
liquidation of the Trust Account, the Company will distribute to all holders of
IPO Shares (defined below) an aggregate sum equal to $10.20 per unit (plus any
remaining portion of the interest income earned on the Trust Account but net of:
(i) taxes; (ii) amounts to be paid to any converting shareholders; and (iii)
amounts released to the Company, from time to time, to fund its working capital
and general corporate requirements, subject to any valid claims by creditors
that are not covered by amounts held in the Trust Account or the indemnities
provided by the Company’s directors and officers. Only holders of IPO Shares (as
defined below) shall be entitled to receive liquidating distributions and the
Company shall pay no liquidating distributions with respect to any other shares
of capital stock of the Company, including the Insider Shares. With
respect to any vote for any plan of dissolution and liquidation recommended by
the Company’s Board of Directors, if any, the Company shall use its reasonable
best efforts to cause all of the Company Affiliates to vote the Ordinary Shares
owned by them in favor of such plan of dissolution and liquidation.
7.6.2. With
respect to the Business Combination Vote, the Company shall use its reasonable
best efforts to cause all of the Insider Shareholders to vote the Ordinary
Shares owned by them immediately prior to this Offering in accordance with the
majority of the IPO Shares. In addition, the Company shall use its
reasonable best efforts to cause the Insider Shareholders to vote Ordinary
Shares they acquire in the IPO or in the aftermarket in favor of the Business
Combination. At the time the Company seeks approval of any potential
Business Combination, the Company will offer each of the holders of the
Company’s Ordinary Shares issued in this Offering (the “IPO Shares”) the right to
convert their IPO Shares at a per share price equal to Conversion Price (as
hereinafter defined). . If holders of up to one share less
than 81% in interest of the Company’s IPO Shares elect to exercise their
conversion rights in connection with the vote of shareholders on the approval of
a Business Combination, the Company may, but will not be required to proceed
with such Business Combination. If the Company elects to so proceed,
it will convert shares, based upon the Conversion Price, from those holders of
IPO Shares who affirmatively requested such conversion. If holders of 81% or
more in interest of the IPO Shares elect to convert their IPO Shares in
connection with a public shareholder vote on the Business Combination, the
Company will not proceed with such Business Combination and will not convert
such shares. In the event that holders of up to one share less than
81% in interest of the Company’s IPO Shares elect to exercise their conversion
rights and the Company consummates its Business Combination, the per share
Conversion Price for each share properly converted shall be as
follows: (i) for those public shareholders who voted in favor of the
Business Combination, $10.00 drawn from the Trust Account and no more than $0.30
drawn pursuant to a certain letter of credit; and (ii) for those public
shareholders who voted against the Business Combination, $10.00 drawn from the
Trust Account only. .
Xxxxx
& Company Securities, LLC
___________,
2009
Page 38 of
45
7.7. Rule
419. The Company agrees that it will use its best efforts to
prevent the Company from becoming subject to Rule 419 under the Act prior to the
consummation of any Business Combination, including, but not limited to, using
its best efforts to prevent any of the Company’s outstanding securities from
being deemed to be a “xxxxx stock” as defined in Rule 3a-51-1 under the Exchange
Act during such period.
7.8. Presentation of Potential
Target Businesses. The Company shall cause each of the Company
Affiliates to agree that, in order to minimize potential conflicts of interest
which may arise from multiple affiliations, the Company Affiliates will present
to the Company for its consideration, prior to presentation to any other person
or company, any suitable opportunity to acquire an operating business, until the
earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the Company Affiliates cease to
be affiliates of the Company, subject to any pre-existing fiduciary obligations
the Company Affiliates might have.
7.9. Target Net
Assets. The Company agrees that the initial Target Business
that it acquires must have a fair market enterprise value equal to at least 80%
of the Company’s net assets held in the Trust Account at the time the Company
enters into a definitive agreement and prior to the exercise of shareholder
conversion rights described herein (net of: (i) taxes paid or reserved for and
(ii) interest earned on the Trust Account and excluding the Deferred Discount)
at the time of the execution of definitive documentation relating to the
Business Combination (the “80%
Net Asset Threshold”). The fair market enterprise value of
such Target Business must be determined by the Board of Directors of the Company
based upon standards generally accepted by the financial community, such as
actual and potential sales, earnings and cash flow and book value. If the
Board of Directors of the Company is not able to independently determine that
the Target Business has a fair market enterprise value of at least the 80% Net
Asset Threshold, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm which is a member of FINRA with respect to
the satisfaction of such criteria. The Company is not required to obtain
an opinion from an investment banking firm as to the fair market enterprise
value if the Company’s Board of Directors independently determines that the fair
market enterprise value of the Target Business meets the 80% Net Asset
Threshold.
8. Representations and
Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this
Agreement shall be deemed to be representations, warranties and agreements at
the Closing Date, and such representations, warranties and agreements of the
Underwriters and Company, including the indemnity agreements contained in
Section 5 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, the
Company or any controlling person, and shall survive termination of this
Agreement or the issuance and delivery of the Securities to the several
Underwriters until the earlier of the expiration of any applicable statute of
limitations and the seventh (7th) anniversary of the later of the Closing Date,
at which time the representations, warranties and agreements shall terminate and
be of no further force and effect.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 39 of
45
9. Effective Date of This
Agreement and Termination Thereof.
9.1. Effective Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
9.2. Termination.
The Representative shall have the right to terminate this Agreement at any time
prior to any Closing Date: (i) if any domestic or international event or act or
occurrence has materially disrupted or, in the Representative’ sole opinion,
will in the immediate future materially disrupt, general securities markets in
the United States; or (ii) if trading on the New York Stock Exchange, the AMEX,
the Nasdaq Stock Market or on the OTC Bulletin Board (or successor trading
market) shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been fixed, or maximum ranges for prices for securities shall have been required
on the OTC Bulletin Board or by order of the Commission or any other government
authority having jurisdiction, or (iii) if the United States shall have become
involved in a war or an increase in existing major hostilities, or (iv) if a
banking moratorium has been declared by a New York State or federal authority,
or (v) if a moratorium on foreign exchange trading has been declared which
materially adversely impacts the United States securities market, or (vi) if the
Company shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which,
whether or not such loss shall have been insured, will, in the Representative’s
sole opinion, make it inadvisable to proceed with the delivery of the Units, or
(vii) if any of the Company’s representations, warranties or covenants hereunder
are breached, or (viii) if the Representative shall have become aware after the
date hereof of such a material adverse change in the conditions or prospects of
the Company, or such adverse material change in general market conditions,
including, without limitation, as a result of terrorist activities after the
date hereof, as in the Representative’s sole judgment would make it
impracticable to proceed with the offering, sale and/or delivery of the Units or
to enforce contracts made by the Underwriters for the sale of the
Units.
9.3. Expenses. In
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed by
Section 3.12.1 hereof.
9.4. Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not
be in any way effected by, such election or termination or failure to carry out
the terms of this Agreement or any part hereof.
10. Miscellaneous.
10.1. Notices. All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered by hand or reputable
overnight courier or delivered by facsimile transmission (with printed
confirmation of receipt) and confirmed and shall be deemed given when so mailed,
delivered or faxed (or if mailed, two days after such mailing):
Xxxxx
& Company Securities, LLC
___________,
2009
Page 40 of
45
If to the
Representative:
Xxxxx
& Company Securities, LLC
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Fax No.:
(212) ___-_____
Attn:
With a
copy (which shall not constitute notice) to:
Ellenoff
Xxxxxxxx & Schole, LLP
000 Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(000) 000-0000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
If
to the Company, to:
GSME
Acquisition Parnters I
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx of China
200041
Fax No.:
___________
Attn: Xxx
X. Xxxxx
With
a copy (which shall not constitute notice) to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax No.:
(212) ___-_____
Attn:
___________
10.2. Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 41 of
45
10.3. Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
10.4. Entire
Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement)
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof, and supersede all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
10.5. Binding Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein
contained.
10.6. Governing Law, Venue,
etc.
10.6.1. 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 the conflict of laws
principles thereof. Each of the Representative and the Company (and
any individual signatory hereto): (i) agrees that any legal suit, action or
proceeding arising out of or relating to this agreement and/or the transactions
contemplated hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York, (ii) waives any objection which such party may have or
hereafter to the venue of any such suit, action or proceeding and (iii)
irrevocably and exclusively consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding.
10.6.2. Each
of the Representative and the Company (and any individual signatory hereto)
further agrees to accept and acknowledge service of any and all process which
may be served in any such suit, action or proceeding in the New York Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York and agrees that service of process upon the
Company or any such individual mailed by certified mail to the Company’s address
shall be deemed in every respect effective service of process upon the Company
or any such individual in any such suit, action or proceeding, and service of
process upon the Representative mailed by certified mail to the Representative’s
address shall be deemed in every respect effective service process upon the
Representative, in any such suit, action or proceeding.
10.6.3. The
Company hereby irrevocably appoints Xxxxxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Fax No.: (000) 000-0000, Attn: Xxxxxxx Xxxxxxx, Esq. as
its authorized agent in the Borough of Manhattan in The City of New York upon
which process may be served in any suit or proceeding contemplated by this
Section 10.6, and agrees that service of process upon such agent, and written
notice of said service to the Company by the person serving the same to the
address provided above shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of the Effective Date.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 42 of
45
10.6.4. THE
COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON
BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS.
10.6.5. 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.
10.7. Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart
of this Agreement by fax or email/.pdf transmission shall constitute valid and
sufficient delivery thereof.
10.8. Waiver, etc.
The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way effect the validity of this Agreement or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
Xxxxx
& Company Securities, LLC
___________,
2009
Page 43 of
45
10.9. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriters are
acting solely as underwriters in connection with the offering of the Company's
securities. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm's length basis and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, shareholders, creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance
of the offering of the Company's securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions, and that
any opinions or views expressed by the Underwriters to the Company regarding
such transactions, including but not limited to any opinions or views with
respect to the price or market for the Company's securities, do not constitute
advice or recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriters with respect to any breach or alleged breach
of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions.
[Signature
Page Follows]
Xxxxx
& Company Securities, LLC
___________,
2009
Page 44 of
45
If the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
Very
Truly Yours,
By:
________________________________________
Name:
Title:
Agreed
to and accepted
as
of the date first written above:
XXXXX & COMPANY SECURITIES,
LLC, as Representative of the several Underwriters
By:
________________________________________
Name:
Title:
[Signature
Page to Underwriting Agreement, dated ___________]
SCHEDULE
A
3,600,000
Units
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
|
TOTAL
|
3,600,000
|
EXHIBIT
A
FORM
OF OPINION OF XXXXXXXX XXXXXX
EXHIBIT
B
FORM
OF OPINION OF XXXXXXX XXXXXX
EXHIBIT
C
Form
of Target Business Letter
GSME
Acquisition Parnters I
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx of China
200041
Fax No.:
___________
Attn: Xxx
X. Xxxxx
Gentlemen:
Reference
is made to the Final Prospectus of GSME Acquisition Partners I (the “Company”), dated ______ __,
2009 (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 $36,000,000 for the benefit of the
Public Shareholders and the underwriters of the Company’s initial public
offering (the “Underwriters”) and that,
except for 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
Shareholders in the event of the conversion of their shares or the dissolution
and liquidation of the Company; or (ii) to the Company and the Underwriters
after it consummates 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.
|
Print
Name of Target Business
|
|
|
Authorized
Signature of Target Business
|
Form
of Vendor Letter
GSME
Acquisition Parnters I
000 Xxxx
Xxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx of China
200041
Fax No.:
___________
Attn: Xxx
X. Xxxxx
Gentlemen:
Reference
is made to the Final Prospectus of GSME Acquisition Partners I (the “Company”), dated _________ __,
2009 (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 $36,000,000 for the benefit of the
Public Shareholders and the underwriters of the Company’s initial public
offering (the “Underwriters”) and that,
except for the interest earned on the amounts held in the Trust Account (which
interest may, prior to the consummation of a business combination or the
Company’s liquidation, be released (i) to the Company to pay taxes it has
incurred, (ii) to converting shareholders, as described in the Prospectus and
(iii) to the Company, from time to time, to fund its working capital and general
corporate requirements), the Company may disburse monies from the Trust Account
only: (i) to the Public Shareholders in the event of the conversion of their
shares or the dissolution and liquidation of the Company; or (ii) to the Company
and the Underwriters after it consummates a Business Combination.
For and
in consideration of the Company agreeing to use 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.
|
Print
Name of Vendor
|
|
|
Authorized
Signature of Vendor
|
