4,500,000 Units TRANSTECH SERVICES PARTNERS INC. UNDERWRITING AGREEMENT
4,500,000
Units
[_______________],
2007
Xxxxx and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
As
Representatives of the Underwriters
named
on Schedule
A
hereto
Ladies
and Gentlemen:
The
undersigned, TransTech Services Partners Inc., a Delaware corporation
(“Company”),
hereby confirms its agreement with Xxxxx and Company, LLC (“Cowen”)
and
Maxim Group LLC (“Maxim”,
and
together with Cowen, hereinafter referred to collectively as “you”
or
the
“Representatives”)
and
with the other underwriters named on Schedule A
hereto
for which you are acting as representatives (the Representatives and the 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,
severally and not jointly, to the several Underwriters, an aggregate of
4,500,000 units (the “Firm
Units”)
of the
Company’s securities at a purchase price (net of discounts and commissions of
$0.56, $0.26 of which shall be deposited into the Trust Fund (as defined herein)
pursuant to Section 1.5) of $7.44 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
attached
hereto and made a part hereof at a purchase price (net of discounts and
commissions of $0.56, $0.26 of which shall be deposited into the Trust Fund
pursuant to Section 1.5) of $7.44 per Firm Unit. The Firm Units are to be
offered initially to the public (the “Offering”)
at the
offering price of $8.00 per Firm Unit. Each Firm Unit consists of one
share of the Company’s common stock, par value $0.0001 per share (the
“Common
Stock”),
and
one warrant to purchase one share of Common Stock (the “Warrant(s)”).
The shares of Common Stock and the Warrants included in the Firm Units will
begin separate trading five Business Days (as defined below) following the
earlier to occur of the expiration of the Underwriters’ Over-allotment Option
(as defined in Section 1.2 hereof) or its exercise in full, subject to the
Company filing a Current Report on Form 8-K with the Commission (as defined
in
Section 2.1.1 hereof) containing an audited balance sheet reflecting the
Company’s receipt of the gross proceeds of the Offering (the “Current
Report on Form 8-K”) and issuing a press release announcing when such
separate trading will begin. The Company will file the Current Report on
Form 8-K upon the completion of the Offering, which is anticipated to take
place
three Business Days following the date of the Prospectus (as defined in Section
2.1.1 hereof). The audited balance sheet will include proceeds the Company
receives from the exercise of the Over-allotment Option, if the Over-allotment
Option is exercised prior to the filing of the Current Report on Form 8-K.
Each
Warrant entitles its holder to purchase one share of Common Stock for $5.00
per
share during the period commencing on the later of: (a) the consummation by
the
Company of its Business Combination (as defined below) or (b) one year from
the
effective date (the “Effective
Date”)
of the
Registration Statement (as defined in Section 2.1.1 hereof), and terminating
on
the four-year anniversary of the Effective Date. As used herein, the term
“Business
Combination”
shall
mean any acquisition by merger, capital stock exchange, asset acquisition,
stock
purchase or other similar business combination consummated by the Company with
one or more small- to mid-market U.S. and/or European based operating companies
engaged in the delivery of Information
Technology and Information Technology Enabled Services (ITES), Business Process
Outsourcing (BPO) and/or Knowledge Process Outsourcing (KPO),
whose
operations are particularly suitable for operational and productivity
improvements, which would include leveraging delivery centers located in
offshore countries such as India (as described more fully in the Registration
Statement). The Company has the right to redeem the Warrants (and the
Representatives’ Warrants but only upon exercise of the Representatives’ Unit
Purchase Option (each as defined below)) upon not less than 30 days written
notice at a price of $0.01 per Warrant at any time after the Warrants become
exercisable; so long as the last sales price of the Common Stock has been at
least $11.50 per share for any 20 trading days within a 30 trading day period
ending on the third Business Day prior to the day on which notice is given.
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.
1
1.1.2. Payment
and Delivery.
Delivery and payment for the Firm Units shall be made at 10:00 a.m., New York
City time, on the third Business Day following the Effective Date of the
Registration Statement (or the fourth Business Day following the Effective
Date,
if the Registration Statement is declared effective after 4:30 p.m., New York
City time) or at such earlier time as shall be agreed upon by the
Representatives and the Company at the offices of Sidley Austin LLP,
000
0xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Sidley’s
Offices”)
or at
such other place as shall be agreed upon by the Representatives 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 by wire transfer
in
federal (same day) funds upon delivery to the Representatives 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 Company shall deposit $35,530,000
($40,754,500 if the Over-allotment Option is exercised in full), or
approximately $7.90 per Unit (or $7.88 if the Over-allotment Option is exercised
in full), of the proceeds received by it for the Firm Units and the Private
Placement (as defined in Section 1.4 hereof) in the trust account established
by
it for the benefit of the public stockholders and the Representatives as
described in the Registration Statement (the “Trust
Fund”)
pursuant to the terms of an Investment Management Trust Agreement (the
“Trust
Agreement”),
which
amount includes $1,170,000 ($0.26 per Firm Unit) or up to $1,372,500 if the
Over-allotment Option is exercised in full, payable to the Representatives
as
contingent compensation upon consummation of a Business Combination. The Firm
Units shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two
Business Days prior to the Closing Date. The Company will permit the
Representatives to examine and package the Firm Units for delivery at least
one
full Business Day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by
the
Representatives for all the Firm Units.
2
1.2. Over-Allotment
Option.
1.2.1. Option
Units.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Units, the Underwriters are hereby granted,
severally and not jointly, an option to purchase up to an additional 675,000
Units from the Company (the “Over-allotment
Option”).
Such additional 675,000 Units shall be identical in all respects to the Firm
Units and are hereinafter referred to as “Option
Units.”
The Firm Units and the Option Units are hereinafter collectively referred to
as
the “Units,”
and
the Units, the shares of Common Stock and the Warrants included in the Units
and
the shares of Common Stock issuable upon exercise of the Warrants are
hereinafter referred to collectively as the “Public
Securities.”
The purchase price to be paid for the Option Units (net of discounts and
commissions of $0.56, $0.30 of which shall be deposited in the Trust Fund
pursuant to Section 1.5) will be $7.44 per Option Unit.
1.2.2. Exercise
of Option.
The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be
exercised by the Representatives as to all (at any time) or any part (from
time
to time) of the Option Units within 45 days after the Effective Date. The
Underwriters will not be under any obligation to purchase any Option Units
prior
to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company
from
the Representatives, which must be confirmed in writing by overnight mail or
facsimile transmission, setting forth the number of Option Units to be purchased
and the date and time for delivery of and payment for the Option Units, which
will not be later than five Business Days after the date of the notice or such
other time as shall be agreed upon by the Company and the Representatives,
at
Sidley’s Offices or at such other place or in such other manner as shall be
agreed upon by the Company and the Representatives. If such delivery of
and payment for the Option Units does not occur on the Closing Date, the date
and time of the closing for such Option Units will be as set forth in the notice
(hereinafter the “Option
Closing Date”).
Upon exercise of the Over-allotment Option, the Company will become obligated
to
convey to the Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the number of Option
Units specified in such notice. If any Option Units are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of Option
Units (subject to such adjustments to eliminate fractional Units as the
Underwriters may determine) that bears the same proportion to the total number
of Option Units to be purchased as the number of Firm Units set forth in
Schedule
A
opposite
the name of such Underwriter bears to the total number of Firm
Units.
3
1.2.3. Payment
and Delivery.
Payment for the Option Units shall be made on the Closing Date or any Option
Closing Date by wire transfer in federal (same day) funds upon delivery to
the
Representatives of certificates (in form and substance satisfactory to the
Underwriters) representing the Option Units (or through the facilities of DTC)
for the account of the Underwriters. The Company shall deposit the sum of $7.74
per Option Unit ($0.30 of which shall be deposited in the Trust Fund pursuant
to
Section 1.5) in the Trust Fund pursuant to the Trust Agreement. The
certificates representing the Option Units to be delivered will be in such
denominations and registered in such
names as the Representatives request not less than two Business Days prior
to
the Closing Date or any Option Closing Date, as the case may be, and will be
made available to the Representatives for inspection, checking and packaging
at
the aforesaid office of the Company’s transfer agent or correspondent not less
than one full Business Day prior to such Closing Date or Option Closing
Date.
1.3. Representative
Purchase Option.
1.3.1. Purchase
Option.
As additional consideration, the Company hereby agrees to issue and sell to
the
Representatives (and/or their respective designees) on the Effective Date an
option (“Representatives’
Purchase Option”)
for
the purchase of an aggregate of 281,250 Units (the “Representatives’
Units”)
for an
aggregate purchase price of $100.00. The Representatives’ 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 three-year anniversary of the Effective Date at an initial
exercise price per Representatives’ Unit of $10.00, which is equal to one
hundred and twenty-five percent (125%) of the initial public offering price
of a
Unit. The Representatives’ Purchase Option, the Representatives’ Units,
the shares of Common Stock and the Warrants included in the Representatives’
Units (the “Representatives’
Warrants”)
and
the shares of Common Stock issuable upon exercise of the Representatives’
Warrants are hereinafter referred to collectively as the “Representatives’
Securities.”
The Public Securities and the Representatives’ Securities are hereinafter
referred to collectively as the “Securities.”
Representatives understand and agree that there are significant restrictions
against transferring the Representatives’ Purchase Option during the first six
months after the Effective Date, as set forth in Section 3 of the
Representatives’ Purchase Option.
1.3.2. Delivery
and Payment.
Delivery of and payment for the Representatives’ Purchase Option shall be made
on the Closing Date. The Company shall deliver to the Representatives and
their respective designees upon payment therefor certificates for the
Representatives’ Purchase Option in the name or names and in such authorized
denominations as the Representatives may request.
1.4. Private
Placement.
Prior
to the Effective Date, TSP Ltd., a Bermuda company wholly-owned by certain
officers and directors of the Company (“TSP”),
purchased from the Company pursuant to that certain Subscription Agreement
(as
defined in Section 2.23.2 hereof) an aggregate of 1,191,667 warrants identical
to the Warrants comprising part of the Units (the “Placement
Warrants”)
at a
purchase price of $1.20 per Placement Warrant in a private placement effected
pursuant to Regulation D under the Securities Act of 1933, as amended (the
“Act”
or
“Securities
Act”)
that
occurred immediately prior to the entering into of this Agreement (the
“Private
Placement”).
The
Placement Warrants and the shares of Common Stock issuable upon exercise of
the
Placement Warrants are hereinafter referred to collectively as the “Placement
Securities.”
There
was no placement agent in the Private Placement and no party shall be entitled
to a placement fee or expense allowance from the sale of the Placement
Warrants.
4
1.5. Contingent
Portion of Underwriters’ Discount.
The
Representatives, on behalf of themselves and the other Underwriters, agree
that
3.25% of the gross proceeds from the sale of the Firm Units ($1,170,000) and
3.75% of the gross proceeds from the sale of the Option Units (an aggregate
of
$1,372,500 if the Over-allotment Option is exercised in full) (collectively,
the
“Contingent
Discount”)
will
be delivered to the Company for deposit in the Trust Fund. The parties hereto
agree that such amounts shall remain payable to the Representatives, along
with
any interest accrued thereon in an aggregate amount not to exceed $60,750,
in
respect of any IPO Shares (as defined in Section 7.6 hereof) which are not
redeemed pursuant to Section 7.6 hereof, upon the consummation of a Business
Combination. The Representatives, on behalf of themselves and the other
Underwriters, agree that the several Underwriters shall forfeit any rights
or
claims to the Contingent Discount and any interest accrued thereon (net of
taxes
payable) on a pro-rata basis, in respect of any IPO Shares that are redeemed
pursuant to Section 7.6 hereof. In addition, in the event the Company is unable
to consummate a Business Combination and Continental Stock Transfer & Trust
Company (“CST”),
the
trustee of the Trust Fund, commences liquidation of the Trust Fund as provided
in the Trust Agreement, the Representatives, on behalf of themselves and the
other Underwriters, agree that (i) the several Underwriters shall forfeit any
rights or claims to the Contingent Discount and any interest accrued thereon
(net of taxes payable); and (ii) the Contingent Discount, together with the
all
other amounts on deposit in the Trust Fund, and any accrued interest thereon
(net of taxes payable), shall be distributed on a pro-rata basis among the
holders of the shares of Common Stock included in the Units sold in the
Offering.
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 Securities and Exchange Commission (the
“Commission”)
a
registration statement on Form S-1 (File No. 333-138080), including any
related preliminary prospectus included therein or in any amendment thereto
prior to the effectiveness thereof (the “Preliminary
Prospectus”),
for
the registration of the Public 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 S-1 to register
the Offering under the Act, as set forth in the General Instructions to such
Form, have been satisfied. 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 therefrom 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 a preliminary
prospectus, dated [________], 2007, for distribution by the Underwriters to
prospective investors (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 Securities Act
registering additional Securities (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 Securities 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 and the Representatives
have 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 in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading and have agreed
in
writing 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.
5
2.1.2. Pursuant
to the Exchange Act.
The Company has filed with the Commission a Form 8-A (File Number 000-[ ])
providing for the registration under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”),
of
the Units, the Common Stock and the Warrants. The registration of the
Units, Common Stock 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 any state regulatory authority has issued any order
or threatened to issue any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the effectiveness of the
Registration Statement or has instituted or, to the best of the Company’s
knowledge, threatened to institute any proceedings with respect to such an
order.
2.3. Disclosures
in Registration Statement.
2.3.1. Disclosure
Representation.
At the time the Registration Statement, or any post effective amendment to
the
Registration Statement, became effective, upon the filing or first use (within
the meaning of the Regulations) of the Prospectus and at all times subsequent
thereto up to the Closing Date and the Option Closing Date, if any, the
Registration Statement 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
nor any Preliminary Prospectus (including the Sale Preliminary Prospectus)
or
the Prospectus, nor, in each case, any amendment thereof or supplement thereto,
on their respective dates, did, does 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 the case of any Preliminary
Prospectus and the Prospectus, in light of the circumstances under which they
were made, not misleading. When any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the Registration Statement for
the
registration of the Securities or any amendment thereto or pursuant to Rule
424(a) of the Regulations) or first used (within the meaning of the Regulations)
and when any amendment thereof or supplement thereto was first filed with the
Commission or first used (within the meaning of the Regulations), such
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, does 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 Representatives 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” (first paragraph only) contained
in the section of the Prospectus entitled “Underwriting.”
6
2.3.2. Disclosure
of Agreements.
The agreements and documents described in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus conform in all material respects
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, Preliminary Prospectus or the Prospectus or attached as an exhibit
thereto, or (ii) is material to the Company’s business or financial condition or
results 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 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 have 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 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.
7
2.3.3. Prior
Securities Transactions.
No securities of the Company have been offered or 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 except as disclosed
in
the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus.
2.3.4. Regulations.
The disclosures in the Registration Statement, the Preliminary Prospectus and
the Prospectus concerning the effects of federal, state and local regulation
on
the Company’s business and financial condition and results as currently
contemplated fairly summarize in all material respects and do not omit to state
a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
2.4. Changes
after Dates in Registration Statement.
2.4.1. No
Material Adverse Change.
Except as stated in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus, since
the
respective dates as of which information is given therein: (i) there has been
no
material adverse change in the condition, financial or otherwise, results of
operations, business or 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.
Except as stated in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus, subsequent to the respective dates as of which information
is given 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.
Xxxxxxxxx
Xxxxx Xxxxxxx LLP
(“GGK”),
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
and the Regulations and the Public Company Accounting Oversight Board
(including
the rules and regulations promulgated by such entity, the “PCAOB”).
To
the best of the Company’s knowledge, GGK is duly registered and in good standing
with the PCAOB. GGK
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.
8
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, cash flows and the results
of
operations of the Company at the dates and for the periods to which they apply;
such financial statements have been prepared in conformity with generally
accepted accounting principles, consistently applied throughout the periods
involved; and such supporting schedules present fairly the information required
to be stated therein. 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 which have not been included as so required.
2.6.2. Statistical
Data.
The
statistical, industry-related and market-related data included in the
Registration Statement, the Sale Preliminary Prospectus and 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 date of this Agreement and
on
the Closing Date and the Option Closing Date, if any, there will be no options,
warrants, or other rights to purchase or otherwise acquire any authorized,
but
unissued shares of Common Stock of the Company or any security convertible
into,
or exchangeable or exercisable for, shares of Common Stock of the Company,
or
any contracts or commitments to issue or sell shares of Common Stock or any
such
options, warrants, rights or securities.
2.8. Valid
Issuance of Securities, Etc.
2.8.1. Outstanding
Securities.
All issued and outstanding securities of the Company (including, without
limitation, the Placement Securities) have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission with respect thereto, and are not subject to personal liability
by
reason of being such holders; and none of such securities were issued in
violation of the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company. Such securities
conform to all statements relating thereto contained in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus. The offers and
sales of the outstanding shares of Common Stock were at all relevant times
either registered under the Act and the applicable state securities or Blue
Sky
laws or, based in part on the representations and warranties of the purchasers
of such shares of Common Stock, exempt from such registration
requirements.
9
2.8.2. Securities
Sold Pursuant to this Agreement.
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
all statements with respect thereto contained in the Registration Statement,
the
Sale Preliminary Prospectus and the Prospectus, as the case may be. When
issued, the Representatives’ Purchase Option, the Representatives’ 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 Representatives’ Purchase
Option, the Representatives’ Warrants and the Warrants are enforceable against
the Company in accordance with their respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (ii) as enforceability of
any indemnification or contribution provision may be limited under federal
and
state securities laws; and (iii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. The shares of Common Stock issuable upon exercise of
Representatives’ Purchase Option, the Representatives’ Warrants and the
Warrants, respectively, have been reserved for issuance upon the exercise of
the
Representatives’ Warrants or the Warrants, as applicable, and when issued in
accordance with the terms thereof, 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.
2.8.3. Placement
Warrants.
The
Placement Warrants constitute valid and binding obligations of the Company
to
issue and sell, upon exercise thereof and payment of the respective exercise
prices therefor, the number and type of securities of the Company called for
thereby in accordance with the terms thereof, and such Placement Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. The shares of Common Stock issuable upon
exercise of the Placement Warrants have been reserved for issuance upon the
exercise of the Placement Warrants and, when issued in accordance with the
terms
of the Placement Warrants, will be duly and validly authorized, validly issued,
fully paid and non-assessable, and the holders thereof are not and will not
be
subject to personal liability by reason of being such holders.
10
2.8.4. No
Integration.
Neither
the Company nor any of its affiliates has 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 Public Securities pursuant to the
Registration Statement.
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 2.22 hereof),
Representatives’ Purchase Option, the Trust Agreement, the Service Agreement (as
defined in Section 3.7.2 hereof), the Subscription Agreement (as defined in
Section 2.23.2 hereof) and the Escrow Agreement (as defined in
Section 2.23.3 hereof) have been duly and validly authorized 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 the federal
and state securities laws; and (iii) that the remedy of specific performance
and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
2.11. No
Conflicts, Etc.
The execution, delivery and performance by the Company of this Agreement, the
Warrant Agreement, Representatives’ Purchase Option, the Trust Agreement, the
Service Agreement, the Subscription Agreement and the Escrow Agreement, the
consummation by the Company of the transactions herein and therein contemplated
(including the issuance of the Securities) and the compliance by the Company
with the terms hereof and thereof do not and will not, with or without the
giving of notice or the lapse of time or both: (i) result in a breach of, or
conflict with, any of the terms and provisions of, or constitute a default
under, or result in the creation, modification, termination or imposition of
any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to the terms of any agreement or instrument to which the Company is a party
except pursuant to the Trust Agreement; (ii) result in any violation of the
provisions of the Third Amended and Restated Certificate of Incorporation (the
“Certificate of Incorporation”) or the bylaws
(“Bylaws”) of the Company; or (iii) violate any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company
or
any of its properties or business.
11
2.12. No
Defaults; Violations.
No default exists in the due performance and observance of any term, covenant
or
condition of any material license, contract, indenture, mortgage, deed of trust,
note, loan or credit agreement, or any other agreement or instrument evidencing
an obligation for borrowed money, or any other material agreement or instrument
to which the Company is a party or by which the Company may be bound or to
which
any of the properties or assets of the Company is subject. The Company is not
in
violation of any term or provision of its Certificate of Incorporation or Bylaws
or in violation of any material franchise, license, permit, applicable law,
rule, regulation, judgment or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties or businesses.
2.13. Corporate
Power; Licenses; Consents.
2.13.1. Conduct
of Business.
The Company has all requisite corporate power and authority, and has all
necessary authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental regulatory officials and bodies that it needs
as of
the date hereof to conduct its business 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 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 as described in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus.
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 has obtained all
consents, authorizations, approvals and orders required in connection
therewith. No consent, authorization or order of, and no filing with, any
court, government agency or other body is required for the valid issuance,
sale
and delivery, of the Securities and the consummation of the transactions and
agreements as contemplated by this Agreement, the Warrant Agreement,
Representatives’ Purchase Option, the Trust Agreement, the Service Agreement,
the Subscription Agreement and the Escrow Agreement and as contemplated by
the
Sale Preliminary Prospectus and Prospectus, except those obtained or made under
applicable federal and state securities laws and the rules and regulations
promulgated by the National Association of Securities Dealers, Inc. (the
“NASD”).
2.14. D&O
Questionnaires.
All information contained in the questionnaires (the “Questionnaires”)
completed by each of (i) the Company’s officers and directors immediately prior
to the Offering (the “Directors/Officers”)
and
(ii) those persons listed in the Registration Statement as a special advisor
(collectively, the “Special
Advisors”),
and
provided to the Underwriters, as well as the biographies attached as an exhibit
to his or her Insider Letter (as defined in Section 2.23.1 hereof) is to
the best of the Company’s knowledge true and correct and the Company is not
aware that any information disclosed in the questionnaires completed by the
Directors/Officers or Special Advisors is inaccurate or incomplete.
12
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 Director/Officer or any Special Advisor which has not
been disclosed in the Registration Statement, the Questionnaires, the Sale
Preliminary Prospectus and the Prospectus.
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 state 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 Company or its business, assets,
operations or financial condition or results.
2.17. No
Contemplation of a Business Combination.
Prior
to the date hereof, none of the Company, any Director/Officer or any Special
Advisor had, or as of the Closing, the Company and such Director/Officers,
Special Advisors and Initial Stockholders will have had: (a) any specific
Business Combination under consideration; or (b) any substantive interactions
or
discussions with any target regarding a possible Business Combination.
2.18. Transactions
Affecting Disclosure to NASD.
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 Director/Officer, Special Advisor 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 stockholders
of the Company immediately prior to the Offering (the “Initial
Stockholders”)
that
may affect the Underwriters’ compensation, as determined by the
NASD.
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 NASD member; or (iii) any person or entity that has any direct or
indirect affiliation or association with any NASD member, within the twelve
months prior to the Effective Date, other than the payment of $25,000 to
Maxim.
2.18.3. No
officer, director, or beneficial owner of any class of the Company’s securities,
including, without limitation, 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 the NASD.
2.18.4. No
Company Affiliate is an owner of stock or other securities of any member of
the
NASD (other than securities purchased on the open market).
13
2.18.5. No
Company Affiliate has made a subordinated loan to any member of the
NASD.
2.18.6. No
proceeds from the sale of the Public Securities or the Placement Warrants will
be paid to any NASD member, or any persons associated or affiliated with a
member of the NASD, except as specifically authorized herein.
2.18.7. Except
with respect to the Representatives, the Company has not issued any warrants
or
other securities, or granted any options, directly or indirectly to anyone
who
is a potential underwriter in the Offering or a related person (as defined
by
NASD rules) of such an underwriter within the 180-day period prior to the
initial filing date of the Registration Statement.
2.18.8. No
person
to whom securities of the Company have been privately issued within the 180-day
period prior to the initial filing date of the Registration Statement has any
relationship or affiliation or association with any member of the NASD.
2.18.9. No
NASD
member intending to participate in the Offering has a conflict of interest
with
the Company. For this purpose, a “conflict of interest” exists when a member of
the NASD and 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 the NASD.
2.18.10. Except
with respect to the Representatives 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 an NASD member, any person associated with a member (as
defined by NASD rules), any potential underwriters in the Offering and any
related persons.
2.19. Foreign
Corrupt Practices Act.
None of the Company, any Director/Officer, any Special Advisor or any other
person acting on behalf of the Company has, directly or indirectly, given or
agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee
of any governmental agency or instrumentality of any government (domestic or
foreign) or any political party or candidate for office (domestic or foreign)
or
any political party or candidate for office (domestic or foreign) or other
person who was, is, or may be in a position to help or hinder the business
of
the Company (or assist it in connection with any actual or proposed transaction)
that (i) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have had a material adverse effect on the Company or the assets,
business or operations of the Company as reflected in any of the financial
statements contained in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus or (iii) if not continued in the future, might
adversely affect the assets, business, operations or prospects of the
Company. 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.
14
2.20. Patriot
Act.
Neither
of the Company
nor, to the Company’s knowledge, any Director/Officer or any Special Advisor or
any other person acting on behalf of the Company has violated: (i) the Bank
Secrecy Act, as amended, (ii) the Money Laundering Control Act of 1986, 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.
2.21. Officers’
Certificate.
Any certificate signed by any duly authorized officer of the Company and
delivered to Representatives or Representatives’ counsel shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
2.22. Warrant
Agreement.
The Company has entered into a warrant agreement with respect to the Warrants,
Representatives’ Warrants and the Placement Warrants with CST substantially in
the form filed as an exhibit to the Registration Statement (the “Warrant
Agreement”).
2.23. Agreements
with Company Affiliates.
2.23.1. 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
noncompete provision may be limited under the federal and state securities
laws,
and (iii) that the remedy of specific performance and injunctive and other
forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
annexed as exhibits to the Registration Statement (the “Insider
Letter”),
pursuant to which each of the Directors/Officers and Initial Stockholders of
the
Company agree to certain matters, including but not limited to, certain matters
described as being agreed to by them under the “Proposed Business”
section of the Registration Statement, the Sale Preliminary Prospectus and
the Prospectus.
2.23.2. Subscription
Agreement.
TSP has
executed and delivered an amended and restated subscription agreement, annexed
as an exhibit to the Registration Statement (the “Subscription
Agreement”),
pursuant to which TSP, among other things, has purchased an aggregate of
1,191,667 Placement Warrants in the Private Placement. Pursuant to the
Subscription Agreement, (i) $1,430,000 of the proceeds from the sale of the
Placement Warrants will be deposited by the Company in the Trust Fund in
accordance with the terms of the Trust Agreement prior to the Closing, and
(ii)
TSP has waived any and all rights and claims it may have to any proceeds, and
any interest thereon, held in the Trust Fund in respect of the Placement
Securities in the event a Business Combination is not consummated and the Trust
Fund is liquidated in accordance with the terms of the Trust
Agreement.
15
2.23.3. Escrow
Agreement.
The Company has caused the Directors/Officers and Initial Stockholders to enter
into an escrow agreement (the “Escrow
Agreement”)
with
CST (the “Escrow
Agent”)
substantially in the form filed as an exhibit to the Registration Statement
whereby the Common Stock owned by such parties will be held in escrow by the
Escrow Agent, until the earlier of: (i) the third anniversary of the Effective
Date or (ii) the one-year anniversary of a Business Combination. During
such escrow period, such parties shall be prohibited from selling or otherwise
transferring such shares (except (a) to spouses and children of such
parties and trusts established for their benefit, (b) after a Business
Combination in a transaction whereby all the outstanding shares of the Company
are exchanged or converted into cash or another entity’s securities and
(c) as otherwise set forth in the Escrow Agreement) unless approved by the
Company’s public stockholders, but will retain the right to vote such shares.
The Escrow Agreement shall not be amended, modified or otherwise changed without
the prior written consent of the Representatives, such consent not to be
unreasonably withheld.
2.24. 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.
2.25. Covenants
Not to Compete.
No Director/Officer, Special Advisor or Initial Stockholder of the Company
is
subject to any noncompetition agreement or non-solicitation agreement with
any
employer or prior employer which could materially affect his ability to be
a
Director/Officer, Special Advisor or Initial Stockholder or employee of the
Company.
2.26. 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 consist of, and no more than 45% of the Company’s net income after
taxes is derived from, securities other than “Government Securities” (as defined
in Section 2(a)(16) of the Investment Company Act).
2.27. Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.28. 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, any Company Affiliate or
any
Underwriter, 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 and
described as required. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company to or for the benefit of any of the
Directors/Officers or Initial Stockholders 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.
2.29. No
Influence.
The
Company has not offered, or caused the Underwriters to offer, the Units to
any
person or entity with the intention of unlawfully influencing: (a) a customer
or
supplier of the Company or any Company Affiliate 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.
16
2.30. 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 Registration Statement, the Sale Preliminary
Prospectus or the Prospectus, with the assumption that such officers and
directors shall have made reasonable and diligent inquiry of the matters
presented.
2.31. 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 other governmental
or self regulatory entity or agency that are applicable to it as of the date
hereof.
2.32. Quotation
of the Public Securities on Bulletin Board.
As of
the Effective Date, the Public Securities have been authorized for quotation
on
the OTC Bulletin Board (“OTCBB”)
and,
to the Company’s knowledge, no proceedings have been instituted or threatened
which would effect, and no event or circumstance has occurred which is
reasonably likely to effect, the listing of the Public Securities on the
OTCBB.
3. Covenants
of the Company.
The Company covenants and agrees as follows:
3.1. Amendments
to Registration Statement, the Sale Preliminary Prospectus.
The Company will deliver to the Representatives, prior to filing or use, any
amendment of or supplement to the Registration Statement, the Sale Preliminary
Prospectus or Prospectus proposed to be filed or used on or after the date
of
the Agreement and not file or use any such amendment or supplement to which
the
Representatives 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
or
the Exchange 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 Sale Preliminary
Prospectus and the Prospectus. If (i) at any time when a prospectus
relating to the Public Securities is required to be delivered under the Act
or
the Exchange Act, (ii) any event shall have occurred or any condition shall
exist as a result of which, in the opinion of counsel for the Company or counsel
for the Underwriters, the Registration Statement, the Sale Preliminary
Prospectus or 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
the case of the Sale Preliminary Prospectus and the Prospectus, in light of
the
circumstances under which they were made) not misleading, or (iii) if it is
necessary during such period to amend the Registration Statement or amend or
supplement the Sale Preliminary Prospectus or the Prospectus to
comply
with the Act or the Exchange Act, the Company will notify the Representatives
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.
17
3.2.2. Filing
of Final Prospectus.
The Company will file the Prospectus (in form and substance satisfactory to
the
Representatives) 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, the Company will use its
best efforts to maintain the registration of the Public Securities under the
provisions of the Exchange Act. The Company will not deregister the Public
Securities under the Exchange Act without the prior written consent of the
Representatives.
3.2.4. 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.
The Company will endeavor in good faith, in cooperation with the
Representatives, 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 Representatives may reasonably
designate and will make such notice filing in each of the states set forth
in
the second full paragraph on page 74 of the pricing prospectus as may be
required in order to permit resales by holders thereof of the Public Securities
in such states, 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 Representatives agree 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
to Underwriters of Prospectuses.
The Company will deliver to each of the several Underwriters, without charge,
from time to time during the period when a prospectus is required to be
delivered (or would be required to be delivered but for Rule 172) under the
Act
or the Exchange Act such number of copies of each Sale Preliminary Prospectus
and 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 thereof or supplement thereto becomes effective, deliver to
Representatives two original executed Registration Statements, including
exhibits, and all post-effective amendments thereto and copies of all exhibits
filed therewith or incorporated therein by reference and all original executed
consents of certified experts.
3.5. Effectiveness
and Events Requiring Notice to the Representative.
The Company will use its best efforts to cause the Registration Statement to
become and remain effective and will notify the Representatives 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
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, any Preliminary Prospectus or
Prospectus, subject to Section 3.1; (v) of the receipt of any comments or
request for any additional information from the Commission; and (vi) of the
happening of any event or existence of any condition 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 and/or the Prospectus untrue or that requires the
making of any changes in the Registration Statement, the Sale Preliminary
Prospectus and/or the Prospectus in order to make the statements therein (with
respect to the Prospectus and Sale Preliminary Prospectus, in light of the
circumstances under which they were made) not misleading. If the
Commission or any state securities commission shall enter a stop order or
suspend such qualification at any time, the Company will make every reasonable
effort to obtain promptly the lifting of such order.
18
3.6. Review
of Financial Statements.
Until the earlier of five years from the Effective Date, or until such earlier
upon which the Company is required to be liquidated, 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, the filing of the Company’s Form 10-Q quarterly report
and the mailing of quarterly financial information to stockholders.
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 Director/Officer, Special Advisor or Initial Stockholder
unless the Company obtains an opinion from an independent investment banking
firm that the Business Combination is fair to the Company’s stockholders from a
financial perspective.
3.7.2. Administrative
Services.
The Company has entered into an agreement (the “Service
Agreement”)
with
Lotus Capital LLC, an existing stockholder of the Company which is majority
owned by XX Xxxxx (“Lotus
Capital”),
in
the form filed as an exhibit to the Registration Statement pursuant to which
Lotus Capital will make available to the Company general and administrative
services, including office space, utilities, receptionist and secretarial
support for the Company’s use for $7,500 per month, which shall be payable out
of the interest earned on the Trust Fund.
3.7.3. Compensation.
Except as set forth in this Section 3.7, the Company shall not pay any
Director/Officer, Special Advisor or Initial Stockholder 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
Initial Stockholders shall be entitled to reimbursement from the Company for
their out-of-pocket expenses incurred on the Company’s behalf, which includes an
aggregate of $125,000 in loans, plus interest at the rate of 4% per annum
thereon, which were made to the Company prior to the Effective Date of the
Registration Statement and expenses incurred by them in connection with seeking
and consummating a Business Combination.
19
3.8. Secondary
Market Trading and Standard & Poor’s.
The Company will apply to be included in Standard and Poor’s Daily News and
Corporation Records Corporate Descriptions for a period of five years from
the
consummation of the Offering. Promptly after the consummation of the
Offering, the Company shall take such steps as may be necessary to obtain
secondary market trading exemptions for the Company’s securities in any state
requested by the Representatives, provided 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. The Company shall also take such
other action as may be reasonably requested by the Representatives to obtain
a
secondary market trading exemption in such other states as may be requested
by
the Representatives.
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 Representatives for a term to be agreed upon by
the
Company and the Representatives.
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, the Company will furnish
to
the Representatives and their 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 Form 8-K or Schedules 13D,
13G, 14D-1 or 13E-4 received or prepared by the Company; (iv) five copies of
each Registration Statement; and (v) such additional documents and
information with respect to the Company and the affairs of any future
subsidiaries of the Company as the Representatives may from time to time
reasonably request; provided the Representatives shall sign, if requested by
the
Company, a Regulation FD compliant confidentiality agreement which is reasonably
acceptable to the Representatives and their counsel in connection with the
Representatives’ receipt of such information. Documents filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“XXXXX”)
shall
be deemed to have been delivered to the Representatives pursuant to this
section.
3.10.2. Transfer
Sheets.
For a period of five years following the Effective Date or until such earlier
time upon which the Company is required to be liquidated, the Company shall
retain a transfer and warrant agent acceptable to the Representatives (the
“Transfer
Agent”)
and
during the two (2) year period following the Closing Date, will furnish to
the
Underwriters at the Company’s sole cost and expense such transfer sheets of the
Company’s securities as the Representatives may request, including subscriptions
to the daily, weekly and monthly consolidated transfer sheets of the Transfer
Agent and DTC. CST is acceptable to the Underwriters.
20
3.10.3. Secondary
Market Trading Survey.
Until such time as the later of (i) the Public Securities being listed or
quoted, as the case may be, on the New York Stock Exchange, the American Stock
Exchange (“AMEX”)
or
quoted on the Nasdaq National Market, or until such earlier time upon which
the
Company is required to be liquidated or (ii) upon consummation of a Business
Combination, the Company shall engage Ellenoff Xxxxxxxx & Schole LLP
(“Ellenoff”),
for
an initial fee of $5,000, plus expenses, 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 for an additional
$5,000 per quarter, plus expenses, 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”),
a
copy of which will be provided to the Company and its counsel.
3.10.4. Trading
Reports.
During such time as the Public Securities are quoted on the OTCBB (or any
successor trading market such as the Bulletin Board Exchange) or the Pink
Sheets, LLC (or similar publisher of quotations) and no other automated
quotation system, the Company shall provide to the Representatives, at their
expense, such reports published by the NASD or the Pink Sheets, LLC relating
to
price trading of the Public Securities, as the Representatives shall reasonably
request. In addition to the requirements of the preceding sentence, for a period
of two years from the Closing Date, the Company, at its expense, shall provide
the Representatives a subscription to the Company’s weekly Depository Transfer
Company Security Position Reports.
3.11. Disqualification
of Form 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,
or
fail to take any action, which may prevent or disqualify the Company’s use of
Form S-1 or S-3 (or other appropriate form) for the registration of the
Warrants, the Representatives’ Warrants and the shares of Common Stock issuable
upon exercise of the Warrants and the Representatives’ 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 each of the Closing Date and the Option
Closing Date, if any, to the extent not paid prior to each such 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 Preliminary Prospectus and the
Prospectus and the printing and mailing of this Agreement and related documents,
including the cost of all copies thereof and any amendments thereof or
supplements thereto supplied to the Underwriters in quantities as may be
required by the Underwriters; (ii) the printing, engraving, issuance and
delivery of the Units, Representatives’ Purchase Option, the shares of Common
Stock and the Warrants included in the Units and the Representatives’ Units,
including any transfer or other taxes payable thereon; (iii) the listing and
qualification of the Public Securities under state or foreign securities or
Blue
Sky laws, including the costs of printing and mailing the “Preliminary Blue Sky
Memorandum,” and all amendments and supplements thereto, fees in an amount equal
to $35,000 and disbursements for the Representatives’ counsel retained for such
purpose, and a fee of $5,000 payable to the Representatives’ counsel for the
preparation of the Secondary Market Trading Survey; (iv) filing fees
incurred in registering the Offering with the NASD (including all COBRADesk
fees); (v) costs of placing “tombstone” advertisements in The
Wall Street Journal,
The
New York Times
and a
third publication to be selected by the Representatives, in an amount not to
exceed $40,000; (vi) fees and disbursements of the transfer and warrant agent;
(vii) the Company’s expenses associated with “due diligence” meetings arranged
by the Representative; (viii) the preparation, binding and delivery of leather
bound volumes in quantity, form and style reasonably satisfactory to the
Representatives and transaction lucite cubes or similar commemorative items
in a
style and quantity as reasonably requested by the Representatives; (ix) all
costs and expenses 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; and (x) all other Company costs and expenses which are not otherwise
specifically provided for in this Section 3.12.1. The Representatives may
deduct from the net proceeds of the Offering payable to the Company on the
Closing Date, or the Option Closing Date, if any, the expenses set forth above
to be paid by the Company to the Representatives and others, as agreed to by
the
Company in writing less the $25,000 which previously have been paid to Maxim
by
the Company. The Company has agreed to pay and has paid the sum of $9,411 for
a
portion of the fees and expenses of an investigative search firm to conduct
an
investigation of the principals of the Company selected by the Representatives,
which amount is included in the total underwriting compensation for the
transaction contemplated hereby.
21
3.12.2. Fee on Business Combination.
Upon consummation of a Business Combination, the Company and the Underwriters
agree that in addition to the expenses payable pursuant to Section 3.12.1,
the
Company will pay to the Representatives the Contingent Discount plus interest
as
described in Section 1.5 hereof.
3.12.3. Fee
on
Termination of Offering.
Upon
termination of the Offering, except as a result of the Representatives’ or any
Underwriter’s material breach or default with respect to any of its material
obligations as described in this Agreement, the Company shall: (A) reimburse
the
Representatives for, or otherwise pay and bear, the expenses and fees to be
paid
and borne by the Company as provided for in Section 3.12.1 above, as applicable,
and (B) reimburse the Representatives for the full amount of their accountable
out-of pocket expenses actually incurred to such date (which shall include,
but
shall not be limited to, all fees and disbursements of the Representatives’
counsel, travel, lodging and other “road show” expenses, mailing, printing and
reproduction expenses, and any expenses incurred by the Representatives in
conducting its due diligence), less the $25,000 previously paid to Maxim in
reimbursement for such expenses. If applicable, and solely in the event of
a
termination of this Offering, the Representatives shall refund to the Company
any portion of the advance previously received by the Representatives which
is
in excess of the accountable out-of-pocket expenses actually incurred to such
date by the Representatives.
22
3.13. Application
of Net Proceeds.
The Company will apply the net proceeds from the Private Placement and the
Offering received by it in a manner 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) and Section 11(a) of the Act) covering a period
of at least twelve consecutive months beginning after the Effective
Date.
3.15. Notice
to NASD.
3.15.1. Business
Combination.
In the
event any person or entity (regardless of any NASD affiliation or association)
is engaged to assist the Company in its search for a merger candidate or to
provide any other merger and acquisition services, the Company or the
Representatives, if they are engaged, will provide the following information
(“Merger Information”) to the NASD (and Representatives, if they are not
engaged) prior to the consummation of the Business
Combination: (i) complete details of all services and copies of
agreements governing such services; and (ii) justification as to why the
person or entity providing the merger and acquisition services should not be
considered an “underwriter and related person” with respect to the Offering, as
such term is defined in Rule 2710 of the NASD’s Conduct Rules. The Company
also agrees that proper disclosure of such arrangement or potential
arrangement will be made in the proxy statement which the Company will file
for
purposes of soliciting stockholder approval for the Business Combination. Upon
the Company’s delivery of the Merger Information to the Representatives, the
Company hereby expressly authorizes the Representatives to provide such
information directly to the NASD as a result of representations the
Representatives have made to the NASD 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 NASD, it shall
promptly notify the NASD.
3.16. Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
stockholders (without the consent of the Representatives) 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.
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.
23
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
GGK or other independent public accountants reasonably acceptable to the
Representatives.
3.19. Form
8-K.
The Company shall, on the date hereof, retain its independent public accountants
to audit the financial statements of the Company as of the Closing Date (the
“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the Offering and the
Private Placement, as well as the proceeds from the exercise of the
Over-allotment Option if such exercise has occurred on the date of the
Prospectus. Within three (3) trading days of the Effective Date, the
Company will file a Current Report on Form 8-K with the Commission, which
Report shall contain the Company’s Audited Financial Statements.
3.20. NASD.
The Company shall advise the NASD if it is aware that any 5% or greater
stockholder of the Company becomes an affiliate or associated person of an
NASD
member participating in the distribution of the Company’s Public
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 of counsel for the
Underwriters.
3.22. Investment
Company.
The
Company shall cause the proceeds of the Offering to be held in the Trust Fund
to
be invested only in “government securities” 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 Registration Statement, the Sale Preliminary Prospectus and the Prospectus.
The Company will otherwise conduct its business in a manner so that it will
not
become subject to the Investment Company Act. Furthermore, once the Company
consummates a Business Combination, it will be engaged in a business other
than
that of investing, reinvesting, owning, holding or trading
securities.
3.23. Business
Combination Announcement.
Within
five Business Days following the consummation by the Company of a Business
Combination, the Company shall
cause an announcement (“Business
Combination
Announcement”)
to be
placed, at its cost, in The
Wall Street Journal,
The
New York Times
and a
third publication to be selected by the
Representatives
announcing the consummation of the Business
Combination
and
indicating that the
Representatives
were the
managing underwriters in the Offering. The Company shall supply the
Representatives
with a
draft of the Business
Combination
Announcement and provide the
Representatives
with
reasonable advance opportunity to comment thereon. The Company will not place
the Business
Combination
Announcement without the final approval of the
Representatives,
which
approval will not be unreasonably withheld.
3.24. Colorado
Trust Filing.
In the
event the Securities are registered in the State of Colorado, the Company will
cause a Colorado Form ES to be filed with the Commissioner of the State of
Colorado no less than 10 days prior to the distribution of the Trust Fund in
connection with a Business Combination and will do all things necessary to
comply with Section 00-00-000 and Rule 51-3.4 of the Colorado
Securities Act. The Representatives will notify the Company if they have sold
any Units purchased hereunder in Colorado within five days after the Closing
Date and each Option Closing Date, if any.
24
3.25. Press
Releases.
The
Company agrees it will not issue press releases or engage in any other publicity
without the Representatives’ prior written consent for a period of 90 days after
the Closing Date.
3.26. Key-Man
Insurance.Prior
to
the consummation of the Business Combination, the Company will obtain key person
life insurance with an insurer rated at least AA or better in the most recent
addition of “Best’s Life Reports” in the aggregate amount of $2,000,000 on the
lives of each of Messrs. Xxxxxx Xxxxxx and XX Xxxxx, or other key management
to
be agreed upon by the Company and the Representatives prior to the Closing
Date.
Such insurance shall be maintained in full force and effect for a period of
three years from the consummation of the Business Combination. The Company
shall
be the sole beneficiary of such policy.
3.27. Electronic
Prospectus.
The
Company shall cause to be prepared and delivered to the Representatives, at
their expense, within one Business Day from the effective date of this
Agreement, an Electronic Prospectus
to be used by the Underwriters in connection with the Offering. As used herein,
the term “Electronic
Prospectus”
means
a
form of prospectus, and any amendment thereof or supplement thereto, that meets
each of the following conditions: (i) it shall be encoded in an electronic
format, satisfactory to the Representatives, 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 Representatives, 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.
3.28. 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,
Representatives’ Purchase Option, Representatives’ Warrants and the Placement
Warrants outstanding from time to time.
25
3.29. Private
Placement Proceeds.
Immediately upon establishment of the Trust Fund and prior to the Closing,
the
Company shall deposit $1,430,000 of the proceeds from the Private Placement
in
the Trust Fund and shall provide the Representatives with evidence of the
same.
3.30. No
Amendment to Charter.
(i) The
Company covenants and agrees that it will not seek to amend or modify provisions
(A)-(G) of Article Fifth of its Certificate of Incorporation.
(ii) The
Company acknowledges that the purchasers of the Firm Units and Option Units
in
this Offering shall be deemed to be third party beneficiaries of Section 3.30
of
this Agreement.
(iii) The
Underwriters and the Company specifically acknowledge that they may not waive
this Section 3.30 under any circumstances.
3.31. Board
Committees.
As
of the
Effective Date, the Company’s Board of Directors shall have validly appointed an
audit committee and the Company’s Board of Directors and audit committee shall
have adopted a charter. Neither
the Company’s Board of Directors nor the audit committee thereof has been
informed, nor is any director of the Company aware, of: (i) any significant
deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal control over financial reporting.
3.32. 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 Fund.
4. Conditions
of Underwriters’ Obligations.
The obligations of the several Underwriters to purchase and pay for the Units
and the Representatives’ 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 each of the Closing Date and the Option Closing Date,
if any, 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 City time,
on the
date of this Agreement or such later date and time as shall be consented to
in
writing by Representatives, and, at each of the Closing Date and the Option
Closing Date, if any, 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 counsel for the
Underwriters.
26
4.1.2. NASD
Clearance.
By the Effective Date, the Representatives shall have received clearance from
the NASD 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 each
of the Closing Date and the Option Closing Date, the Commission has not issued
any order or threatened to issue any order preventing or suspending the use
of
any Preliminary Prospectus or 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
Representatives pursuant to Section 3.3 hereof shall have been issued on
either the Closing Date or any Option Closing Date and no proceedings for that
purpose shall have been instituted or shall be contemplated.
4.2. Company
Counsel Matters.
4.2.1. Effective
Date Opinion of Counsel.
On the Closing Date, the Representatives shall have received the favorable
opinion of Xxxxxx Xxxxxx Rosenman LLP (“KMR”),
counsel to the Company, dated the Closing Date, addressed to the Representatives
and in form and substance satisfactory to the Representatives to the effect
that:
(i) The
Company has been duly organized and is validly existing as a corporation and
is
in good standing under the laws of its state of incorporation, with full power
and authority to own its properties and conduct its business as described in
the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. The Company is duly qualified and licensed and in good
standing as a foreign corporation in the State of New York, except where the
failure to qualify would not have a material adverse effect on the Company,
its
business or assets; operations or financial conditions or results.
(ii) The
Company’s authorized equity capitalization is as set forth in the Sale
Preliminary Prospectus and the Prospectus; the capital stock of the Company
conforms to the description thereof contained in the Sale Preliminary Prospectus
and the Prospectus. All issued and outstanding securities of the Company
(including, without limitation, the Placement Securities) have been duly
authorized and validly issued and are fully paid and non-assessable; the holders
thereof 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 stockholder of the Company arising by operation of law or under the
Certificate of Incorporation or Bylaws of the Company. The offers and sales
of
the outstanding Common Stock were at all relevant times either registered under
the Act or exempt from such registration requirements. The authorized and
outstanding capital stock of the Company is as set forth in the Sale Preliminary
Prospectus and the Prospectus. The Units, the Common Stock and the Warrants
conform in all material respects to the descriptions thereof contained in the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus.
27
(iii) The
Securities have been duly authorized 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 arising by operation of law or under
the
Certificate of Incorporation or Bylaws of the Company or, to such counsel’s
knowledge, similar rights that entitle or will entitle any person to acquire
any
security from the Company upon issuance or sale thereof. When issued,
Representatives’ Purchase Option, Representatives’ Warrants and the Warrants
will constitute valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment therefor, the number and type of securities
of
the Company called for thereby and such Representatives’ Purchase Option,
Representatives’ Warrants and Warrants, when issued, in each case, will be
enforceable against the Company in accordance with their respective terms,
except: (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (b) as
enforceability of any indemnification or contribution provision may be limited
under the United States and state securities laws; and (c) 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 certificates
representing the Securities are in due and proper form. A sufficient number
of
shares of Common Stock have been reserved for issuance upon exercise of
Representatives’ Purchase Option, Representatives’ Warrants and the Warrants.
The shares of Common Stock underlying Representatives’ Purchase Option,
Representatives’ Warrants and the Warrants will, upon their respective exercise
and payment of the exercise price thereof, be duly and validly issued, fully
paid and non-assessable and will not have been issued in violation of or subject
to, to such counsel’s knowledge, preemptive or similar rights that entitle or
will entitle any person to acquire, to such counsel’s knowledge, any securities
from the Company upon issuance thereof.
(iv) The
Placement Warrants constitute valid and binding obligations of the Company
to
issue and sell, upon exercise thereof and payment therefor, the number and
type
of securities of the Company called for thereby, and such Placement Warrants
are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. A sufficient number of shares of Common
Stock have been reserved for issuance upon exercise of the Placement Warrants.
The shares of Common Stock underlying the Placement Warrants will, upon exercise
of the Placement Warrants and payment of the exercise price thereof, be duly
and
validly issued, fully paid and non-assessable and will not have been issued
in
violation of or subject to, to such counsel’s knowledge, preemptive or similar
rights that entitle or will entitle any person to acquire any securities from
the Company upon issuance thereof.
28
(v) The
Company has full corporate right, power and authority to execute and deliver
this Agreement, the Warrant Agreement, the Service Agreement, the Trust
Agreement, the Subscription Agreement, the Escrow Agreement and Representatives’
Purchase Option, and to perform its obligations thereunder, and all corporate
action required to be taken for the due and proper authorization, execution
and
delivery of this Agreement, the Warrant Agreement, the Service Agreement, the
Trust Agreement, the Subscription Agreement, the Escrow Agreement and
Representatives’ Purchase Option has been duly and validly taken.
(vi) Based
upon certificates provided by the Initial Stockholders, each Insider Letter,
the
Subscription Agreement and the Escrow Agreement have been duly authorized,
executed and delivered by the Initial Stockholders (or, if applicable, their
affiliates) party thereto and constitute the valid and binding obligations
of
such Initial Stockholders enforceable against them in accordance with their
respective terms, except: (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally; (b) as enforceability of any indemnification or contribution
provisions may be limited under the federal and state securities laws; and
(c)
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.
(vii) This
Agreement, the Warrant Agreement, the Service Agreement, the Trust Agreement,
the Subscription Agreement, the Escrow Agreement and Representatives’ Purchase
Option have each been duly and validly authorized and, when executed and
delivered by the Company, will constitute the valid and binding obligations
of
the Company, enforceable against the Company in accordance with their respective
terms, except: (a) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (b) as enforceability of any indemnification or contribution
provisions may be limited under the United States and state securities laws;
and
(c) 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.
(viii) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
Representatives’ Purchase Option, the Escrow Agreement, the Trust Agreement, the
Subscription Agreement and the Service Agreement, the issuance and sale of
the
Securities, the consummation of the transactions contemplated hereby and
thereby, and compliance by the Company with the terms and provisions hereof
and
thereof, do not and will not, with or without the giving of notice or the lapse
of time, or both, (a) conflict with, or result in a breach of, any of the terms
or provisions of, or constitute a default under, or result in the creation
or
modification of any lien, security interest, charge or encumbrance upon any
of
the properties or assets of the Company pursuant to the terms of, any mortgage,
deed of trust, note, indenture, loan, contract, commitment or other agreement
or
instrument filed as an exhibit to the Registration Statement, (b) result in
any
violation of the provisions of the Certificate of Incorporation or the Bylaws
of
the Company, or (c) violate any statute, rule or regulation or, to such
counsel’s knowledge, any judgment, order or decree applicable to the Company of
any court, domestic or foreign, or of any federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company,
its
properties or assets.
29
(ix) The
Registration Statement, each Sale Preliminary Prospectus and the Prospectus
and
any amendments or supplements thereto (other than the financial statements
included therein, as to which no opinion need be rendered) each as of their
respective dates complied as to form in all material respects with the
requirements of the Act and Regulations. The Securities and each agreement
filed as an exhibit to the Registration Statement conform in all material
respects to the description thereof contained in the Registration Statement,
the
Sale Preliminary Prospectus and the Prospectus.
(x) The
Registration Statement is effective under the Act. To such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act or applicable state
securities laws. Any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b).
(xi) To
such
counsel’s knowledge, there is no action, suit or other proceeding before or by
any court of governmental agency or body, domestic or foreign, now pending,
or
threatened against the Company that is required to be described in the
Registration Statement that is not so described. To such counsel’s knowledge,
there is no franchise, contract or other document of a character required to
be
described in the Registration Statement, the Sale Preliminary Prospectus or
the
Prospectus, or to be filed as an exhibit to the Registration Statement, which
is
not described or filed as required.
(xii) No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any judicial, regulatory or other
legal or governmental agency or body is required for the execution, delivery
and
performance by the Company of the Underwriting Agreement or consummation by
the
Company of the transactions contemplated by the Underwriting Agreement, the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
except for (1) such as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Units by the
Underwriters (as to which such counsel need express no opinion), (2) such as
have been made or obtained under the Securities Act and (3) such as have been
made or obtained under the NASD (as to which counsel need express no
opinion).
(xiii) The
statements under the captions “Proposed Business—Comparison to Offerings of
Blank Check Companies” and “Description of Securities” and Item 14 of Part II of
the Registration Statement and the Sale Preliminary Prospectus, insofar as
such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect
to
such legal matters, documents and proceedings.
(xiv) The
Units, Common Stock and Warrants are duly authorized for quotation on the
OTCBB.
(xv) Except
as
set forth in the Sale Preliminary Prospectus and the Prospectus, no holders
of
securities of the Company have rights to the registration of such securities
under the Registration Statement pursuant to the Certificate of Incorporation
or
the Bylaws of the Company or, to the best of such counsel’s knowledge, pursuant
to any agreement or instrument of the Company.
30
(xvi) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, an “investment company” as defined in the Investment
Company Act.
The
opinion of counsel shall further include a statement to the effect that counsel
has participated in conferences with officers and other representatives of
the
Company, representatives of the independent public accountants for the Company
and representatives of the Underwriters at which the contents of the
Registration Statement, the Sale Preliminary Prospectus, the Prospectus and
related matters were discussed and although such counsel is not passing upon
and
does not assume any responsibility for the accuracy, completeness or fairness
of
the statements contained in the Registration Statement, Preliminary Prospectus
and the Prospectus (except as otherwise set forth in this opinion), nothing
has
come to the attention of such counsel which lead them to believe that either
the
Registration Statement, Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, as of the date of such opinion, or in the
case
of the Sale Preliminary Prospectus, as of the date thereof, contained any untrue
statement of a material fact or omitted to state a 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included
in
the Registration Statement, the Sale Preliminary Prospectus or the
Prospectus).
4.2.2. Option
Closing Date Opinion of Counsel.
On the Option Closing Date, if any, the Representatives shall have received
the
favorable opinion of KMR, dated the Option Closing Date, addressed to the
Representatives and in form and substance reasonably satisfactory to counsel
to
the Representatives, confirming as of the Option Closing Date, the statements
made by KMR in its opinion delivered on the Closing Date.
4.2.3. 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
Representatives) of other counsel reasonably acceptable to the Representatives,
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.
4.3. Opinion
of the Counsel for the Underwriters.
The
Representatives shall have received from Sidley Austin LLP,
counsel
for the Underwriters, such opinion or opinions, dated the Closing Date,
in
form
and substance satisfactory to, and addressed to, the Representatives on behalf
of the Underwriters, with respect to the issuance and sale of the Units, the
Registration Statement, the Sale Preliminary Prospectus, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished
to
such counsel such documents as they request for the purpose of enabling them
to
pass upon such matters.
31
4.4. Comfort
Letter.
At the time this Agreement is executed, and at each of the Closing Date and
the
Option Closing Date, if any, Representatives shall have received a letter,
addressed to the Representatives of the Underwriters 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 Representatives
from
GGK dated, respectively, as of the date of this Agreement and as of the Closing
Date and such Option 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 Preliminary Prospectus and the Prospectus, provided to the
Company any non-audit services, as such term is used in Section 10A(g) of
the Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act and the applicable Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available minutes of the stockholders and board of directors and the various
committees of the board of directors, consultations with officers and other
employees of the Company responsible for financial and accounting matters and
other specified procedures and inquiries, nothing has come to their attention
which would lead them to believe that: (a) the unaudited financial statements
of
the Company included in the Registration Statement, the 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, Sale
Preliminary Prospectus and the Prospectus; (b) at a date not later than five
days prior to the Effective Date, Closing Date or Option Closing Date, as the
case may be, there was any change in the capital stock or long-term debt of
the
Company, or any decrease in the stockholders’ equity of the Company as compared
with amounts shown in the March 31, 2007 unaudited balance sheet included in
the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
or
if there was any decrease, setting forth the amount of such
decrease;
(iv) Stating
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;
32
(v) Stating
they have not, since inception, provided the Company’s management with any
written communication in accordance with PCAOB Interim Auditing Standards AU
Section 325 “Communications about Control Deficiencies in an Audit of Financial
Statements”; and
(vi) Statements
as to such other matters incident to the transaction contemplated hereby as
Representatives may reasonably request.
4.5. Officers’
Certificates.
4.5.1. Officers’
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representatives 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, dated the Closing Date or such Option Closing Date, as the
case
may be, respectively, to the effect that the Company has performed all covenants
and complied with all conditions required by this Agreement to be performed
or
complied with by the Company prior to and as of the Closing Date, or such Option
Closing Date, as the case may be, and that the conditions set forth in this
Agreement have been satisfied as of such date and that, as of Closing Date
and
the Option Closing Date, as the case may be, the representations and warranties
of the Company set forth in Section 2 hereof are true and correct. In
addition, the Representatives will have received such other and further
certificates of officers of the Company as the Representatives may reasonably
request.
4.5.2. Secretary’s
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representatives shall have received a certificate of the Company signed by
the
Secretary or Assistant Secretary of the Company, dated the Closing Date or
such
Option Closing Date, as the case may be, respectively, certifying: (i) that
the
Certificate of Incorporation and Bylaws 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 Offering and the Private Placement 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.
4.6. No
Material Changes.
Prior to and on each of the Closing Date and the Option Closing Date, if any:
(i) there shall have been no material adverse change or development in the
condition, results, 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, any Company Affiliate or any
Initial Stockholder before or by any court or federal or state commission,
board
or other administrative agency wherein an unfavorable decision, ruling or
finding may materially adversely affect the business, operations, prospects
or
financial condition or income of the Company, except as set forth in the
Registration Statement, 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 thereof 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, nor any amendment
thereof or supplement thereto, shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Sale Preliminary
Prospectus or Prospectus, in light of the circumstances under which they were
made) not misleading.
33
4.7. Delivery
of Agreements.
4.7.1. Effective
Date Deliveries.
On the Effective Date, the Company shall have delivered to the Representatives
executed copies of the Escrow Agreement, the Trust Agreement, the Warrant
Agreement, the Service Agreement, all of the Insider Letters, the Subscription
Agreement and a lock-up letter from TSP, substantially in the form attached
hereto as Exhibit
A-1,
and
from each of the Directors/Officers and Initial Stockholders other than TSP,
substantially in the form attached hereto as Exhibit
A-2.
4.7.2. Closing
Date Deliveries.
On the Closing Date, the Company shall have delivered to the Representatives
and
CST, and their designees, executed copies of the Representatives’ Purchase
Option.
4.8. Secondary
Market Trading Survey.
On the Closing Date, the Representatives and the Company shall have received
the
Secondary Market Trading Survey from Ellenoff.
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
Representatives that participates in the offer and sale of the Units and each
of
their respective directors, officers and employees and each person, if any,
who
controls any such Underwriter or 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), as incurred,
to which they or any of them may become subject under the Act, the Exchange
Act
or any other 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) any post-effective amendment or amendments
or
any new registration statement and prospectus in which is included Public
Securities and in which the Representatives act as the underwriters 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 state securities commission
or
agency, the OTCBB or Nasdaq or any securities exchange, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or
necessary to make the statements therein (in the case of any Preliminary
Prospectus or the Prospectus, 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 the Representatives expressly for
use
in any Preliminary Prospectus, the Registration Statement, or the Prospectus,
or
any amendment thereof or supplement thereto, 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.
The Company agrees promptly to notify the Representatives 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.
34
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 approval of such Underwriter, which will not be unreasonably withheld)
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 a conflict may arise
between the positions of the indemnified and indemnifying parties or 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 Representatives may assume
the defense of such indemnified parties and the reasonable fees and expenses
of
not more than one additional firm of attorneys (in addition to local counsel)
selected by the Representatives shall be borne by the Company.
Notwithstanding anything to the contrary contained herein, if the
Representatives 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 each person,
if
any, who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the foregoing indemnity from the Company
to the several Underwriters, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions made in
any
Preliminary Prospectus, the Registration Statement, or the Prospectus, or any
amendment thereof 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 the Representatives expressly for
use in such Preliminary Prospectus, the Registration Statement, or the
Prospectus, or any amendment thereof 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, or the Prospectus, or any amendment thereof 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.
35
5.3. Contribution.
5.3.1. Contribution
Rights.
In order to provide for just and equitable contribution 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: (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Units pursuant to this Agreement or (ii) if the allocation provided
by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well
as any other relevant equitable considerations.
5.3.2. Relative
Benefits.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Units pursuant to
this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Units pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on the cover of the Prospectus.
5.3.3. Relative
Fault.
The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
36
5.3.4. Equitable
Considerations.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 5.3 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 5.3. The aggregate amount
of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 5.3 shall be deemed to include
any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
5.3.5. Limitation
on Underwriters’ Contributions.
Notwithstanding the provisions of this Section 5.3, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Units underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 5.3 are several in proportion
to the number of Firm Units set forth opposite their respective names in
Schedule
A
hereto
and not joint.
5.3.6. Fraudulent
Misrepresentations.
No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation.
5.3.7. Others
Included in Contribution Rights.
For
purposes of this Section 5.3, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and each Underwriter’s Affiliates, dealers and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and
each person, if any, who controls the Company within the meaning of Section
15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
6. Default
by an Underwriter.
6.1. Default
Not Exceeding 10% of Firm Units or Option Units.
If any Underwriter or Underwriters shall default in its or their obligations
to
purchase the Firm Units or the Option Units, if the Over-allotment Option is
exercised, hereunder, and if the number of the Firm Units or Option Units with
respect to which such default relates does not exceed in the aggregate 10%
of
the number of Firm Units or Option Units that all Underwriters have agreed
to
purchase hereunder, then such Firm Units or Option Units to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion
to
their respective commitments hereunder.
37
6.2. Default
Exceeding 10% of Firm Units or Option Units.
In the event that the default addressed in Section 6.1 above relates to more
than 10% of the Firm Units or Option Units, Representatives may in their
discretion arrange for themselves or for other party or parties to purchase
such
Firm Units or Option Units to which such default relates on the terms contained
herein. If within one Business Day after such default relating to more
than 10% of the Firm Units or Option Units, Representatives do not arrange
for
the purchase of such Firm Units or Option Units, then the Company shall be
entitled to a further period of one Business Day within which to procure another
party or parties satisfactory to Representatives to purchase said Firm Units
or
Option Units on such terms. In the event that neither Representatives nor
the Company arrange for the purchase of the Firm Units or Option Units to which
a default relates as provided in this Section 6, this Agreement may be
terminated by the Representatives 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,
however,
that if
such default occurs with respect to the Option Units, this Agreement will not
terminate as to the Firm Units; and provided further
that
nothing herein shall relieve a defaulting Underwriter of its liability, if
any,
to the other several Underwriters and to the Company for damages occasioned
by
its default hereunder.
6.3. Postponement
of Closing Date.
In the event that the Firm Units or Option Units to which the default relates
are to be purchased by the non-defaulting Underwriters, or are to be purchased
by another party or parties as aforesaid, Representatives or the Company shall
have the right to postpone the Closing Date or Option Closing Date for a
reasonable period, but not in any event exceeding five Business Days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement, the Preliminary Prospectus 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, the
Preliminary Prospectus 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 (i) issue any shares of Common Stock or any options,
warrants, rights or other securities convertible into, or exchangeable or
exercisable for, shares of Common Stock, or any shares of Preferred Stock which
participate in any manner in the Trust Fund or which vote as a class with the
Common Stock on a Business Combination other than the Public Securities and
the
Placement Warrants, or (ii) file any registration statement with respect to
the
offer and sale of any of the foregoing.
7.2. Trust
Fund Waiver Acknowledgments.
The
Company hereby agrees that it will not commence its due diligence investigation
of any operating business or businesses which the Company seeks to acquire
(each, a “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
Fund, initially in an amount of $35,530,000 (without giving effect to any
exercise of the Over-allotment Option) for the benefit of the Public
Stockholders and that, except for a portion of the interest earned on the
amounts held in the Trust Fund, the Company may disburse monies from the Trust
Fund only (i) to the Public Stockholders in the event of the conversion of
their
shares or the dissolution and liquidation of the Trust Fund 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 Fund (“Claim”)
and
waives any Claim it may have in the future as a result of, or arising out of,
any negotiations, contracts or agreements with the Company and will not seek
recourse against the Trust Fund for any reason whatsoever. The
foregoing letters shall substantially be in the form attached hereto as
Exhibit
B
and
Exhibit
C,
respectively. Furthermore, each officer and director of the Company shall
execute a waiver letter in the form attached hereto as Exhibit
D.
38
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, Initial Stockholder and the Representatives or the Subscription
Agreement and will not allow any amendments to, or waivers of, such Insider
Letters or the Subscription Agreement without the prior written consent of
the
Representatives.
7.4. Certificate
of Incorporation and Bylaws.
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 Certificate of
Incorporation or Bylaws. Subject to Section 3.30, prior to the
consummation of a Business Combination, the Company will not amend its
Certificate of Incorporation or Bylaws without the prior written consent of
the
Representatives.
7.5. Blue
Sky Requirements.
The Company shall provide counsel to the Representatives with ten copies of
all
proxy information and all related material filed with the Commission in
connection with a Business Combination concurrently with such filing with the
Commission. In addition, the Company shall furnish any other state in
which the Offering was registered such information as may be requested by such
state.
7.6. Acquisition/Liquidation
Procedure.
(a)
The
Company agrees: (i) that, prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s stockholders for their approval
(“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
stockholder approval under applicable state law; and (ii) that, in the event
that the Company does not effect a Business Combination within 18 months from
the consummation of this Offering (subject to extension for an additional
six-month period, as described in the Prospectus) (the “Termination
Date”),
the
Company shall take all action necessary to dissolve the Corporation and
liquidate the Trust Fund to holders of IPO Shares as soon as reasonably
practicable, and after approval of the Company’s stockholders and subject to the
requirements of the Delaware General Corporation Law (the “GCL”),
including the adoption of a resolution by the Company’s Board of Directors,
prior to such Termination Date, pursuant to Section 275(a) of the GCL, which
shall deem the dissolution of the Company advisable and cause to be prepared
such notices as are required by Section 275(a) of the GCL as promptly thereafter
as possible. If the Company does not consummate a Business Combination by the
Termination Date, the Company shall, with respect to any plan of dissolution
and
liquidation, cause the Company’s Board of Directors to convene, adopt a plan of
dissolution and liquidation and promptly prepare and file a proxy statement
with
the Securities and Exchange Commission setting out the plan of dissolution
and
liquidation. If the Company seeks approval from its stockholders to consummate
a
Business Combination within 90 days of the expiration of 24 months from the
Effective Date, the proxy statement related to such Business Combination will
state that a vote of the stockholders not to approve the Business Combination
will constitute a vote to dissolve and liquidate the Company. If no proxy
statement seeking the approval of the stockholders for a Business Combination
has been filed within 30 days prior to the date which is 24 months from the
Effective Date, the Company shall cause its Board of Directors, prior to such
date, to convene and adopt a plan of dissolution and liquidation and on such
date file a proxy statement with the Securities and Exchange Commission seeking
stockholder approval for such plan. Upon liquidation of the Trust Fund, the
Company will distribute to all holders of IPO Shares an aggregate sum equal
to
$7.90 per unit (plus a portion of the interest earned, but net of: (i) taxes
payable on interest earned and (ii) up to $600,000 ($800,000 if the
over-allotment option is exercised in full) of interest income released to
the
Company to fund its working capital, plus a pro rata share of any remaining
net
assets, subject to any valid claims by our creditors that are not covered by
amounts held in the Trust Fund 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. With respect to any vote for any plan of dissolution and
liquidation recommended by the Company’s Board of Directors, the Company shall
use its best efforts to cause all of the Company Affiliates and Initial
Stockholders to vote the shares of Common Stock owned by them in favor of such
plan of dissolution and liquidation.
39
(b) With
respect to the Business Combination Vote, the Company shall use its best efforts
to cause all of the Company Affiliates and Initial Stockholders to vote the
shares of Common Stock owned by them immediately prior to this Offering in
accordance with the majority of the IPO Shares voted by the holders of the
IPO
Shares in connection with the Business Combination Vote. At the time the Company
seeks approval of any potential Business Combination, the Company will offer
each of the holders of the Company’s Common Stock issued in this Offering (the
“IPO
Shares”)
the
right to convert their IPO Shares at a per share price equal to $7.90, or $7.88
if the Over-allotment Option is exercised (plus a portion of the interest
earned, but net of (i) taxes payable on interest earned and (ii) up to $600,000
($800,000 if the Over-allotment Option is exercised in full) of interest income
released to the Company to fund its working capital (the “Conversion
Price”). If
holders of less than 20% in interest of the Company’s IPO Shares vote against
such 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 and
who
voted against the Business Combination. If holders of 20% or more in
interest of the IPO Shares vote against approval of any potential Business
Combination, the Company will not proceed with such Business Combination and
will not convert such shares. Only holders of IPO Shares shall be entitled
to
receive liquidating distributions and the Company shall pay no liquidating
distributions with respect to any other shares of capital stock of the Company.
In the event any of the holders of the IPO Shares exercise its right to convert
its IPO Shares to cash, certain of the stockholders of the Company prior to
the
IPO have agreed pursuant to the Insider Letters and the Escrow Agreement that,
in order to partially offset the resulting dilution to the non-converting
holders of the IPO Shares, they shall surrender to the Company, prior to the
consummation of the Business Combination, up to an aggregate of 99,973 of their
shares of Common Stock of the Company (as described in the Prospectus) and
the
Company shall cause such stockholders to surrender to the Company, prior to
the
consummation of the Business Combination, such shares of Common Stock.
40
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 Directors/Officers, Special Advisors and
Initial Stockholders to agree that, in order to minimize potential conflicts
of
interest which may arise from multiple affiliations, the Directors/Officers,
Special Advisors and Initial Stockholders 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 or the liquidation of
the
Company, subject to any pre-existing fiduciary obligations such
Director/Officer, Special Advisor or Initial Stockholder might
have.
7.9. Target
Net Assets.
The Company agrees that the initial Target Business that it acquires must have
a
fair market value equal to at least 80% of the amount in the Trust Fund
(excluding deferred underwriting compensation payable to the Representatives)
at
the time of such acquisition. The fair market value of such business must be
determined by the Board of Directors of the Company based upon standards
generally accepted by the financial community, such as actual and potential
sales, earnings and cash flow and book value. If the Board of Directors of
the Company is not able to independently determine that the Target Business
has
a fair market value of at least 80% of the amount in the Trust Fund (excluding
deferred underwriting compensation payable to the Representatives) at the time
of such acquisition, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm which is a member of the NASD with respect
to the satisfaction of such criteria. The Company is not required to
obtain an opinion from an investment banking firm as to the fair market value
if
the Company’s Board of Directors independently determines that the Target
Business does have sufficient fair market value.
8. Representations
and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
shall
be deemed to be representations, warranties and agreements at the Closing Date
and each of the Option Closing Date, if any, 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 anniversary of the later
of the Closing Date or the Option Closing Date, if any, at which time the
representations, warranties and agreements shall terminate and be of no further
force and effect.
41
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 Representatives 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 Representatives’ 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 Boston Stock Exchange or on the OTCBB (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 OTCBB
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 major hostilities, or (iv) if a banking moratorium has been
declared by a New York State or federal authority or a material disruption
in
commercial banking or securities settlement or clearance services has occurred,
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 Representatives’
sole opinion, make it impracticable or inadvisable to proceed with the delivery
of the Units, or (vii) if the Representatives shall have become aware after
the
date hereof of such a material adverse change in the financial condition,
results of operations, business or prospects of the Company, or such adverse
material change in general market conditions, including, without limitation,
as
a result of terrorist activities on or after the date hereof, as in the
Representatives’ 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, except as a result of the Representatives’ or any Underwriter’s
material breach or default with respect to any of its material obligations
as
described in this Agreement, 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 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.
42
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):
If
to the
Representatives:
Xxxxx and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Head of Equity Capital Markets
Fax:
(000) 000-0000
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxxx Xxxxxx, Director of Investment Banking
Fax:
(000) 000-0000
Copy
to:
Xxxxx and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
General Counsel
Fax:
(000) 000-0000
Sidley
Austin
LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxxxx, Esq.
Fax:
(000) 000-0000
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxx, Esq.
Fax:
(000) 000-0000
If
to the
Company:
000
Xxxxx
Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
XX 00000
(000)
000-0000
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer
Fax:
x00(000) 000-0000
43
Copy
to:
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx, Esq.
Fax:
(000) 000-0000
10.2. Headings.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
10.3. Amendment.
This Agreement may only be amended by a written instrument executed by each
of
the parties hereto.
10.4. Entire
Agreement.
This Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) 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 Representatives, the Underwriters, the Company and the controlling persons,
directors, officers referred to in Section 5 hereof, except as otherwise
specified in Section 3.30, 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 Representatives 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 Representatives 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 Representatives mailed by certified mail to the address of
each
Representative shall be deemed in every respect effective service process upon
the Representatives, in any such suit, action or proceeding.
44
10.6.3. 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, THE SALE PRELIMINARY PROSPECTUS AND THE PROSPECTUS.
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.
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 an agent, advisor or fiduciary to the Company, its
management, stockholders, 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 agency, advisory,
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 agency, advisory, fiduciary or similar duty
to
the Company in connection with the transactions contemplated by this Agreement
or any matters leading up to such transactions.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
46
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:
|
Xxxxxx
Xxxxxx
|
||
|
|
Title:
|
Chief
Executive Officer
|
||
Agreed
to
and accepted on the date first above written
|
XXXXX
AND COMPANY, LLC, as Representative of the several
underwriters
|
||
|
|
|
|
|
|
|
|
|
By:
|
||
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
MAXIM
GROUP LLC, as Representative of the several underwriters
|
||
|
By:
|
||
|
|
Name:
|
|
|
|
Title:
|
|
47
SCHEDULE A
4,500,000
Units
|
Underwriter
|
|
Number
of Firm Units
to
be Purchased
|
|
|
|
|
|
|
|
Xxxxx
and Company, LLC
|
|
[
]
|
|
|
|
|
|
|
|
Maxim
Group LLC
|
|
[
]
|
|
|
|
|
|
|
|
|
|
4,500,000
|
|
48
EXHIBIT
A-1
Form
of Lock-Up Letter for TSP Ltd.
[DATE],
2007
Xxxxx
and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
As
Representatives of the several Underwriters
Re:
TransTech Services Partners Inc. - Registration Statement on Form S-1 for
Units
Dear
Sirs:
This
Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) between TransTech Services Partners
Inc., a Delaware corporation (the “Company”) and Xxxxx and Company, LLC
(“Cowen”) and Maxim Group LLC (“Maxim”), as representatives of a group of
underwriters (collectively, the “Underwriters”), to be named therein, and the
other parties thereto (if any), relating to the proposed public offering of
units (the “Units”), each of which consists of one share of the Company’s common
stock, par value $0.0001 per share (the “Common Stock”), and one warrant to
purchase one share of Common Stock (the “Warrant(s)”).
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, and in light of the benefits that the offering of the Units will
confer upon the undersigned in its capacity as a securityholder of the Company,
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees, subject to the terms of the
Escrow Agreement (as defined in the Underwriting Agreement), with each
Underwriter that, during the period beginning on and including the date of
the
Underwriting Agreement through and ending on the later of the date of the
consummation of the initial Business Combination (as defined in the Underwriting
Agreement) and the date that is the 180th day after the date of the Underwriting
Agreement (the “Lock-Up Period”), the undersigned will not, without the prior
written consent of Cowen and Maxim, directly or indirectly, (i) offer, sell,
assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce
the intention to otherwise dispose of, any shares of Common Stock (including,
without limitation, Common Stock which may be deemed to be beneficially owned
by
the undersigned in accordance with the rules and regulations promulgated under
the Securities Act of 1933, as amended (the “Securities Act”) as the same may be
amended or supplemented from time to time (such shares, the “Beneficially Owned
Shares”)) or securities convertible into or exercisable or exchangeable for
Common Stock, (ii) enter into any swap, hedge or similar agreement or
arrangement that transfers in whole or in part, the economic risk of ownership
of, directly or indirectly, or demand a filing with the Securities and Exchange
Commission of a registration statement under the Securities Act relating to,
any
shares of Common Stock (including, without limitation, the Beneficially Owned
Shares) or securities convertible into or exercisable or exchangeable for Common
Stock, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or (iii) engage in any short selling of the Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock.
If
(x) the Company issues an earnings release or material news or a material event
relating to the Company occurs during the last 17 days of the Lock-Up Period,
or
(y) prior to the expiration of the Lock-Up Period, the Company announces that
it
will release earnings results during the 16-day period beginning on the last
day
of the Lock-Up Period, the Lock-Up Period shall be extended and the restrictions
imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
A-1
The
restrictions set forth in the immediately preceding paragraph shall not apply
to:
(a) any
transfers to any shareholder, partner or member of, or owner of a similar equity
interest in, the undersigned, as the case may be, if, in any such case, such
transfer is not for value, and
(b) any
transfer made by the undersigned (i) in connection with the sale or other bona
fide transfer in a single transaction of all or substantially all of the
undersigned’s capital stock, partnership interests, membership interests or
other similar equity interests, as the case may be, or all or substantially
all
of the undersigned’s assets, in any such case not undertaken for the purpose of
avoiding the restrictions imposed by this agreement or (ii) to another
corporation, partnership, limited liability company or other business entity
so
long as the transferee is an affiliate (as defined below) of the undersigned
and
such transfer is not for value;
provided,
however,
that in
the case of any transfer described in clause (a) or (b) above, it shall be
a
condition to the transfer that (A) the transferee executes and delivers to
Cowen
and Maxim, acting on behalf of the Underwriters, not later than one business
day
prior to such transfer, a written agreement, in substantially the form of this
agreement and otherwise satisfactory in form and substance to Cowen and Maxim,
and (B) if the undersigned is required to file a report under Section 16(a)
of
the Securities Exchange Act of 1934, as amended, reporting a reduction in
beneficial ownership of shares of Common Stock or Beneficially Owned Shares
or
any securities convertible into or exercisable or exchangeable for Common Stock
or Beneficially Owned Shares during the Lock-Up Period (as the same may be
extended as described above), the undersigned shall include a statement in
such
report to the effect that, in the case of any transfer pursuant to clause (a)
above, such transfer is being made to a shareholder, partner or member of,
or
owner of a similar equity interest in, the undersigned and is not a transfer
for
value or, in the case of any transfer pursuant to clause (b) above, such
transfer is being made either (i) in connection with the sale or other bona
fide
transfer in a single transaction of all or substantially all of the
undersigned’s capital stock, partnership interests, membership interests or
other similar equity interests, as the case may be, or all or substantially
all
of the undersigned’s assets or (ii) to another corporation, partnership, limited
liability company or other business entity that is an affiliate of the
undersigned and such transfer is not for value. For purposes of this paragraph,
“affiliate” shall have the meaning set forth in Rule 405 under the Securities
Act of 1933, as amended.
A-2
In
order
to enable this covenant to be enforced, the undersigned hereby consents to
the
placing of legends or stop transfer instructions with the Company’s transfer
agent with respect to any Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock.
The
undersigned further agrees that (i) it will not, during the Lock-Up Period
(as
the same may be extended as described above), make any demand or request for
or
exercise any right with respect to the registration under the Securities Act
of
1933, as amended, of any shares of Common Stock or other Beneficially Owned
Shares or any securities convertible into or exercisable or exchangeable for
Common Stock or other Beneficially Owned Shares, and (ii) the Company may,
with
respect to any Common Stock or other Beneficially Owned Shares or any securities
convertible into or exercisable or exchangeable for Common Stock or other
Beneficially Owned Shares owned or held (of record or beneficially) by the
undersigned, cause the transfer agent or other registrar to enter stop transfer
instructions and implement stop transfer procedures with respect to such
securities during the Lock-Up Period (as the same may be extended as described
above).
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this agreement and that this agreement has been
duly
authorized, executed and delivered by the undersigned and is a valid and binding
agreement of the undersigned. This agreement and all authority herein conferred
are irrevocable and shall be binding upon the personal representatives,
successors and assigns of the undersigned.
A-3
The
undersigned acknowledges and agrees that whether or not any public offering
of
the Units actually occurs depends on a number of factors, including market
conditions.
Very
truly yours,
(Name
of
Stockholder - Please Print)
(Signature)
(Name
of
Signatory - Please Print)
(Title
of
Signatory - Please Print)
Address:______________________________
______________________________
______________________________
______________________________
______________________________
X-0
XXXXXXX
X-0
Form
of Lock-Up Letter
for
Directors/Officers and Existing Shareholders other than TSP
Ltd.
[DATE],
2007
Xxxxx
and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
As
Representatives of the several Underwriters
Re:
TransTech Services Partners Inc. - Registration Statement on Form S-1 for
Units
Dear
Sirs:
This
Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) between TransTech Services Partners
Inc., a Delaware corporation (the “Company”) and Xxxxx and Company, LLC
(“Cowen”) and Maxim Group LLC (“Maxim”), as representatives of a group of
underwriters (collectively, the “Underwriters”), to be named therein, and the
other parties thereto (if any), relating to the proposed public offering of
units (the “Units”), each of which consists of one share of the Company’s common
stock, par value $0.0001 per share (the “Common Stock”), and one warrant to
purchase one share of Common Stock (the “Warrant(s)”).
In
order
to induce you and the other Underwriters to enter into the Underwriting
Agreement, and in light of the benefits that the offering of the Units will
confer upon the undersigned in its capacity as a securityholder and/or an
officer, director or employee of the Company, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
undersigned agrees, subject to the terms of the Escrow Agreement (as defined
in
the Underwriting Agreement), with each Underwriter that, during the period
beginning on and including the date of the Underwriting Agreement through and
ending on the later of the date of the consummation of the initial Business
Combination (as defined in the Underwriting Agreement) and the date that is
the
180th day after the date of the Underwriting Agreement (the “Lock-Up Period”),
the undersigned will not, without the prior written consent of Cowen and Maxim,
directly or indirectly, (i) offer, sell, assign, transfer, pledge, contract
to
sell, or otherwise dispose of, or announce the intention to otherwise dispose
of, any shares of Common Stock (including, without limitation, Common Stock
which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations promulgated under the Securities Act of 1933,
as
amended (the “Securities Act”) as the same may be amended or supplemented from
time to time (such shares, the “Beneficially Owned Shares”)) or securities
convertible into or exercisable or exchangeable for Common Stock, (ii) enter
into any swap, hedge or similar agreement or arrangement that transfers in
whole
or in part, the economic risk of ownership of, directly or indirectly, or demand
a filing with the Securities and Exchange Commission of a registration statement
under the Securities Act relating to, any shares of Common Stock (including,
without limitation, the Beneficially Owned Shares) or securities convertible
into or exercisable or exchangeable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or (iii) engage in any
short
selling of the Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock. If (x) the Company issues an earnings release
or
material news or a material event relating to the Company occurs during the
last
17 days of the Lock-Up Period, or (y) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during
the
16-day period beginning on the last day of the Lock-Up Period, the Lock-Up
Period shall be extended and the restrictions imposed by this Agreement shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
A-5
The
restrictions set forth in the immediately preceding paragraph shall not apply
to
any transfers made by the undersigned (i) as a bona fide gift to any member
of
the immediate family (as defined below) of the undersigned or to a trust the
beneficiaries of which are exclusively the undersigned or members of the
undersigned’s immediate family, (ii) by will or intestate succession upon the
death of the undersigned or (iii) as a bona fide gift to a charity or
educational institution; provided,
however,
that in
the case of any such transfer described above, it shall be a condition to the
transfer that (A) the transferee executes and delivers to Cowen and Maxim,
acting on behalf of the Underwriters, not later than one business day prior
to
such transfer, a written agreement, in substantially the form of this agreement
(it being understood that any references to “immediate family” in the agreement
executed by such transferee shall expressly refer only to the immediate family
of the undersigned and not to the immediate family of the transferee) and
otherwise satisfactory in form and substance to Cowen and Maxim, and (B) if
the
undersigned is required to file a report under Section 16(a) of the Securities
Exchange Act of 1934, as amended, reporting a reduction in beneficial ownership
of shares of Common Stock or Beneficially Owned Shares or any securities
convertible into or exercisable or exchangeable for Common Stock or Beneficially
Owned Shares during the Lock-Up Period (as the same may be extended as described
above), the undersigned shall include a statement in such report to the effect
that such transfer is being made as a gift or by will or intestate succession.
For purposes of this paragraph, “immediate family” shall mean a spouse, child,
grandchild or other lineal descendant (including by adoption), father, mother,
brother or sister of the undersigned; and “affiliate” shall have the meaning set
forth in Rule 405 under the Securities Act of 1933, as amended.
In
order
to enable this covenant to be enforced, the undersigned hereby consents to
the
placing of legends or stop transfer instructions with the Company’s transfer
agent with respect to any Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock.
The
undersigned further agrees that (i) it will not, during the Lock-Up Period
(as
the same may be extended as described above), make any demand or request for
or
exercise any right with respect to the registration under the Securities Act
of
1933, as amended, of any shares of Common Stock or other Beneficially Owned
Shares or any securities convertible into or exercisable or exchangeable for
Common Stock or other Beneficially Owned Shares, and (ii) the Company may,
with
respect to any Common Stock or other Beneficially Owned Shares or any securities
convertible into or exercisable or exchangeable for Common Stock or other
Beneficially Owned Shares owned or held (of record or beneficially) by the
undersigned, cause the transfer agent or other registrar to enter stop transfer
instructions and implement stop transfer procedures with respect to such
securities during the Lock-Up Period (as the same may be extended as described
above).
A-6
The
undersigned hereby represents and warrants that this agreement is a valid and
binding agreement of the undersigned. This agreement and all authority herein
conferred are irrevocable and shall survive the death or incapacity of the
undersigned and shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
A-7
The
undersigned acknowledges and agrees that whether or not any public offering
of
the Units actually occurs depends on a number of factors, including market
conditions.
Very
truly yours,
(Name
of
Stockholder - Please Print)
(Signature)
Address:______________________________
______________________________
______________________________
______________________________
______________________________
A-8
EXHIBIT
B
Form
of Target Business Letter
000
Xxxxx
Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer and President
Gentlemen:
Reference
is made to the final prospectus of TransTech Services Partners Inc.,
(“TransTech”),
dated
________, 2007 (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 TransTech has established the Trust
Fund
(as defined in the Underwriting Agreement between TransTech and the underwriters
named therein), initially in an amount of at least $35,530,000 for the benefit
of the Public Stockholders and the Representatives of the several underwriters
of TransTech’s initial public offering and that, except for a portion of the
interest earned on the amounts held in the Trust Fund, TransTech may disburse
monies from the Trust Fund only (i) to the Public Stockholders in the event
of
the redemption of their shares or the dissolution and liquidation of TransTech
or (ii) to TransTech and the Representatives after it consummates a Business
Combination.
For
and
in consideration of TransTech agreeing to evaluate the undersigned for purposes
of consummating a Business Combination with it, the undersigned hereby agrees
that it does not have any right, title, interest or claim of any kind in or
to
any monies in the Trust Fund (the “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with TransTech and will not seek
recourse against the Trust Fund for any reason whatsoever.
|
Print
Name of Target Business
|
|
|
Authorized
Signature of Target Business
|
B-1
EXHIBIT
C
Form
of Vendor Letter
TransTech
Services Partners Inc.
000
Xxxxx
Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer and President
Gentlemen:
Reference
is made to the final prospectus of TransTech Services Partners Inc.,
(“TransTech”),
dated
___________, 2007 (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 TransTech has established the Trust
Fund
(as defined in the Underwriting Agreement between TransTech and the underwriters
named therein), initially in an amount of at least $35,530,000 for the benefit
of the Public Stockholders and the Representatives of the several underwriters
of TransTech’s initial public offering and that, except for a portion of the
interest earned on the amounts held in the Trust Fund, TransTech may disburse
monies from the Trust Fund only (i) to the Public Stockholders in the event
of
the redemption of their shares or the dissolution and liquidation of TransTech
or (ii) to TransTech and the Representatives after it consummates a Business
Combination.
For
and
in consideration of TransTech agreeing to use the products or services of the
undersigned, the undersigned hereby agrees that it does not have any right,
title, interest or claim of any kind in or to any monies in the Trust Fund
(the
“Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with TransTech and will not seek
recourse against the Trust Fund for any reason whatsoever.
|
Print
Name of Vendor
|
|
|
Authorized
Signature of Vendor
|
C-1
EXHIBIT
D
Form
of Director/Officer or Special Advisor Letter
TransTech
Services Partners Inc.
000
Xxxxx
Xxxxxx
Xxxxx
00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer and President
Gentlemen:
The
undersigned officer or director of, or special advisor to, TransTech Services
Partners Inc., (“TransTech”)
hereby
acknowledges that TransTech has established the Trust Fund (as defined in the
Underwriting Agreement between TransTech and the underwriters named therein),
initially in an amount of at least $35,530,000 for the benefit of the Public
Stockholders, Xxxxx and Company, LLC and Maxim Group LLC, the representatives
of
the underwriters of TransTech’s initial public offering (“Representatives”) and
that TransTech may disburse monies from the Trust Fund only (i) to the Public
Stockholders in the event of the redemption of their shares or the dissolution
and liquidation of TransTech or (ii) to TransTech and the Representatives after
it consummates a Business Combination.
The
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Fund (the “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any contracts or agreements with TransTech and will not seek recourse
against the Trust Fund for any reason whatsoever.
Notwithstanding
the foregoing, such waiver shall not apply to any shares acquired by the
undersigned in the public market.
|
Print
Name of Officer/Director
|
|
|
Authorized
Signature of Officer/Director
|
D-1
