EARLYBIRDCAPITAL, INC. NEW YORK, NEW YORK 10016 SELECTED DEALERS AGREEMENT
EARLYBIRDCAPITAL,
INC.
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Dear
Sirs:
1. Registration
under the Securities Act
of 1933, as amended (“Act”), of the 4,500,000 Units* Plus
the over-allotment option available to the Underwriters to purchase up to an
additional 675,000 Units. of Spring Creek Acquisition Corp. (“Company”), as more
fully described in the Preliminary Prospectus, dated _________, 2008, and in
the
final prospectus (“Prospectus”) which will be forwarded to you, will become
effective in the near future. We, as the Underwriters, are offering certain
of
the Units for purchase by a selected group of dealers (“Selected Dealers”) on
the terms and conditions stated herein.
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Authorized
Public Offering Price:
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$8.00
per Unit.
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Dealers’
Selling Concession:
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Not
to exceed $0.__ per Unit payable upon termination of this Agreement,
except as provided below. We reserve the right not to pay such
concession
on any of the Units purchased by any of the Selected Dealers
from us and
repurchased by us at or below the price stated above prior to
such
termination.
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Reallowance:
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You
may reallow not in excess of $0.__ per Unit as a selling concession
to
dealers who are members in good standing of the Financial Industry
Regulatory Authority (“FINRA”) or to foreign dealers who are not eligible
for membership in FINRA and who have agreed (i) not to sell the
Units
within the United States of America, its territories or possessions
or to
persons who are citizens thereof or residents therein, and (ii)
to abide
by the applicable NASD Conduct Rules of
FINRA.
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* Plus
the
over-allotment option available to the Underwriters to purchase up to an
additional 675,000 Units.
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Delivery
and Payment:
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Delivery
of the Units shall be made on or about ______, 2008 or such later
date as
we may advise on not less than one day’s notice to you, at the office of
EarlyBirdCapital,
Inc.,
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or at such other place as we shall specify on not less than one
day’s
notice to you. Payment for the Units is to be made, against delivery,
at
the authorized public offering price stated above, or, if we shall
so
advise you, at the authorized public offering price less the dealers’
selling concession stated above, by wire
transfer in Federal (same day) funds or by
certified or official bank check in New York Clearing House Funds
payable
to the order of EarlyBirdCapital,
Inc.
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Termination:
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This
Agreement shall terminate at the close of business on the 45th
day following the effective date of the Registration Statement
(of which
the enclosed Prospectus forms a part), unless extended at our discretion
for a period or periods not to exceed in the aggregate 30 additional
days.
We may terminate this Agreement, whether or not extended, at any
time
without notice.
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2. Any
of
the Units purchased by you hereunder are to be offered by you to the public
at
the public offering price, except as herein otherwise provided and except that
a
reallowance from such public offering price not in excess of the amount set
forth on the first page of this Agreement may be allowed as consideration for
services rendered in distribution to dealers that (a) are actually engaged
in the investment banking or securities business; (b) execute the written
agreement prescribed by Rule 2740 of FINRA’s NASD Conduct Rules; and (c) are
either members in good standing of FINRA or foreign banks, dealers or
institutions not eligible for membership in FINRA that represent to you that
they will promptly reoffer such Units at the public offering price and will
abide by the conditions with respect to foreign banks, dealers and institutions
set forth in paragraph 9 below.
3. You,
by
becoming a member of the Selected Dealers, agree (a) upon effectiveness of
the
Registration Statement and your receipt of the Prospectus, to take up and pay
for the number of Units allotted and confirmed to you, (b) not to use any of
the
Units to reduce or cover any short position you may have and (c) to make
available a copy of the Prospectus to all persons who on your behalf will
solicit orders for the Units prior to the making of such solicitations by such
persons. You are not authorized to give any information or to make any
representations other than those contained in the Prospectus or any supplements
or amendments thereto.
4. We
may be authorized to over-allot in
arranging sales to Selected Dealers, to purchase and sell Units, and to
stabilize or maintain the market price of the Units. You agree to advise us
at
any time and from time to time upon our request, prior to the termination of
this Agreement, of the number of Units purchased by you remaining unsold by
you,
and you will, upon our request at any such time, sell to us, for our account
or
the account of one or more of the Underwriters, such amount of such unsold
Units
as we may designate, at the public offering price thereof less an amount to
be
determined by us not in excess of the concession to dealers. In the event that
prior to the later of (i) the termination of this Agreement or (ii) the covering
by us of any short position created by us in connection with the offering of
the
Units, for our account or the account of one or more Underwriters, we purchase
or contract to purchase for our account or the account of any of the
Underwriters, in the open market or otherwise, any Units theretofore delivered
to you, we reserve the right to withhold the above-mentioned concession to
dealers on such Units if sold to you at the public offering price, or if such
concession has been allowed to you through your purchase at a net price, you
agree to repay such concession upon our demand, plus, in each case, any taxes
on
redelivery, commissions, original issue discount, accrued interest and dividends
paid in connection with such purchase or contract to purchase.
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5. As
contemplated by Rule 15c2-8 under
the Securities Exchange Act of 1934, as amended, we agree to mail a copy of
the
Prospectus to any person making a written request therefor during the period
referred to in the rules and regulations adopted under such Act, the mailing
to
be made to the address given in the request. You confirm that you have delivered
all preliminary prospectuses and revised preliminary prospectuses, if any,
required to be delivered under the provisions of Rule 15c2-8 and agree to
deliver all copies of the Prospectus required to be delivered thereunder. We
have heretofore delivered to you such preliminary prospectuses as have been
required by you, receipt of which is hereby acknowledged, and will deliver
such
further prospectuses as may be requested by you. You agree to keep an accurate
record of your distribution (including dates, number of copies and persons
to
whom sent) of copies of the Prospectus or any preliminary prospectus (or any
amendment or supplement to any thereof), and promptly upon request by us to
bring all subsequent changes to the attention of anyone to whom such material
shall have been furnished. You agree to furnish to persons who receive a
confirmation of sale a copy of the Prospectus filed pursuant to Rule 424(b)
or
Rule 424(c) under the Securities Act.
6. You
agree
that until termination of this Agreement you will not make purchases or sales
of
the Units except (a) pursuant to this Agreement, (b) pursuant to authorization
received from us, or (c) in the ordinary course of business as broker or agent
for a customer pursuant to any unsolicited order.
7. Additional
copies of the Prospectus and any supplements or amendments thereto shall be
supplied in reasonable quantity upon request.
8. The
Units
are offered by us for delivery when, as and if sold to, and accepted by, us
and
subject to the terms herein and in the Prospectus or any supplements or
amendments thereto, to our right to vary the concessions and terms of offering
after their release for public sale, to approval of counsel as to legal matters
and to withdrawal, cancellation or modification of the offer without
notice.
9. Upon
written application to us, you shall be informed as to the jurisdictions under
the securities or blue sky laws of which we believe the Units are eligible
for
sale, but we assume no responsibility as to such eligibility or the right of
any
member of the Selected Dealers to sell any of the Units in any jurisdiction.
We
acknowledge that you have advised us that sales of the Company’s securities
cannot be made from the state of New Jersey or Connecticut. You represent to
us
that all sales by you of the Company’s securities will be made by your offices
outside the state of New Jersey and Connecticut. We have caused to be filed
a
Further State Notice relating to such of the Units to be offered to the public
in New York in the form required by, and pursuant to, the provisions of Article
23A of the General Business Law of the State of New York. Upon the completion
of
the public offering contemplated herein, each member of the Selected Dealers
agrees to promptly furnish to us, upon our request, territorial distribution
reports setting forth each jurisdiction in which sales of the Units were made
by
such member, the number of Units sold in such jurisdiction, and any further
information as we may request, in order to permit us to file on a timely basis
any report that we as the Underwriters of the offering or manager of the
Selected Dealers may be required to file pursuant to the securities or blue
sky
laws of any jurisdiction.
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10. You,
by becoming a member of the
Selected Dealers, represent that you are actually engaged in the investment
banking or securities business and that you are (a) a member in good standing
of
FINRA and will comply with all applicable rules of FINRA, including but not
limited to FINRA’s NASD Conduct Rule 2740, or (b) a foreign dealer or
institution that is not eligible for membership in FINRA and that has agreed
(i)
not to sell Units within the United States of America, its territories or
possessions or to persons who are citizens thereof or residents therein; (ii)
that any and all sales shall be in compliance with Rule 2790 of FINRA’s NASD
Conduct Rules; (iii) to comply, as though it were a member of FINRA, with Rules
2730, 2740 and 2750 of FINRA’s NASD Conduct Rules, and to comply with Rule 2420
thereof as that Rule applies to a non-member broker or dealer in a foreign
country. You represent that neither you nor any of your directors, officers,
partners, or persons associated with you (as defined in the By-Laws of FINRA)
nor, to your knowledge, any "related person" (as defined by FINRA in its
Interpretation Relating to Review of Corporate Financing, which term includes
counsel, financial consultants and advisors, finders, members of the selling
or
distribution groups, and any other persons associated with or related to any
of
the foregoing) or any other broker-dealer has had, within the last twelve
months, any dealings with the Company or any controlling shareholders thereof
(other than relating to this Agreement) as to which documents or information
are
required to be filed with FINRA pursuant to its Interpretation Relating to
Review of Corporate Financing.
11. You
are not authorized to act as agent
for any Underwriter or the Company in offering the Units to the public
otherwise. Neither we not any Underwriter shall be under any obligation to
you
except as specifically set forth herein. Nothing herein shall constitute any
members of the Selected Dealers partners with us or with each other, but you
agree, notwithstanding any prior settlement of accounts or termination of this
Agreement, to bear your proper proportion of any tax or other liability based
upon the claim that the Selected Dealers constitute a partnership, association,
unincorporated business or other separate entity and a like share of any
expenses of resisting any such claim.
12. EarlyBirdCapital,
Inc. shall
be
the Managing Underwriter of the offering and manager of the Selected Dealers
and
shall have full authority to take such action as we may deem advisable in
respect of all matters pertaining to the offering or the Selected Dealers or
any
members of them. Except as expressly stated herein, or as may arise under the
Act, we shall be under no liability to any member of the Selected Dealers as
such for, or in respect of (i) the validity or value of the Units (ii) the
form
of, or the statements contained in, the Prospectus, the Registration Statement
of which the Prospectus forms a part, any supplements or amendments to the
Prospectus or such Registration Statement, any preliminary prospectus, any
instruments executed by, or obtained or any supplemental sales data or other
letters from, the Company, or others, (iii) the form or validity of the
Underwriting Agreement or this Agreement, (iv) the eligibility of any of the
Units for sale under the laws of any jurisdiction, (v) the delivery of the
Units, (vi) the performance by the Company, or others of any agreement on its
or
their part, or (vii) any matter in connection with any of the foregoing, except
our own want of good faith.
13. If
for
federal income tax purposes the Selected Dealers, among themselves or with
the
Underwriters, should be deemed to constitute a partnership, then we elect to
be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986, as amended, and we agree not to take any position
inconsistent with such selection. We authorize you, in your discretion, to
execute and file on our behalf such evidence of such election as may be required
by the Internal Revenue Service.
14. All
communications from you shall be addressed to EarlyBirdCapital,
Inc.
at
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Attention: General Counsel. Any notice from us to you shall be deemed to have
been fully authorized by the Underwriters and to have been duly given if mailed,
telegraphed or sent by confirmed facsimile transmittal to you at the address
to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to conflict of
laws. Time is of the essence in this Agreement.
If
you
desire to become a member of the Selected Dealers, please advise us to that
effect immediately by facsimile transmission and sign and return to us the
enclosed counterpart of this letter.
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Very
truly yours,
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| By: | ||
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General Counsel |
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We
accept
membership in the Selected Dealers on the terms specified
above.
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Dated:
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,
2008
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(Selected
Dealer)
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By:
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Name:
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Title:
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