UNDERWRITING AGREEMENT between CAVICO CORP. and RODMAN & RENSHAW, LLC as Representative
between
and
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC
as
Representative
___________
__, 2009
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC
1251
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned, Cavico Corp., a company formed under the laws of Delaware
(collectively with its subsidiaries and affiliates, the “Company”), hereby confirms its
agreement with ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC (hereinafter referred to as “you”
(including its correlatives) or the “Representative”) and with the
other underwriters named on Schedule 1 hereto for which the Representative is
acting as representative (the Representative and such other underwriters being
collectively called the “Underwriters” or, individually, an “Underwriter”) as
follows:
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1.
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Purchase
and Sale of Securities.
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1.1 Firm
Securities.
1.1.1. Nature
and Purchase of Firm Securities.
(i) 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
_____________ shares (“Firm
Shares”) of Common Stock, par value $.001 per share (the “Shares”).
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company the
number of Firm Shares set forth opposite their respective names on Schedule 1
attached hereto and made a part hereof at a purchase price (net of discounts and
commissions) of [___] per Share (94 % of the per Share offering price). The Firm
Shares are to be offered initially to the public (the “Offering”) at the offering
price set forth on the cover page of the Prospectus (as defined in Section 2.1.1
hereof).
1.1.2. Shares
Payment and Delivery.
(i) Delivery
and payment for the Firm Shares shall be made at 10:00 a.m., Eastern time, on
the third (3rd)
Business Day following the effective date (the “Effective Date”) of the
Registration Statement (as defined in Section 2.1.2 below) (or the fourth
(4th)
Business Day following the Effective Date, if the Registration Statement is
declared effective after 4:30 p.m.) or at such earlier time as shall be agreed
upon by the Representative and the Company at the offices of Loeb & Loeb,
LLP counsel to the Underwriters (“Loeb & Loeb LLP”), or at
such other place (or remotely by facsimile or other electronic transmission) as
shall be agreed upon by the Representative and the Company. The hour and date of
delivery and payment for the Firm Shares is called the “Closing Date.”
(ii) Payment
for the Firm Shares shall be made on the Closing Date by wire transfer in
Federal (same day) funds, payable to the order of the Company upon delivery of
the certificates (in form and substance satisfactory to the Underwriters)
representing the Firm Shares (or through the facilities of the Depository Trust
Company (the “DTC”)) for
the account of the Underwriters. The Firm Shares shall be registered in such
name or names and in such authorized denominations as the Representative may
request in writing at least two (2) full Business Days prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Firm Shares
except upon tender of payment by the Representative for all the Firm Shares. The
term “Business Day”
means any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions are authorized or obligated by law to close in New
York City.
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2009
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1.2 Over-allotment
Option.
1.2.1. Option
Shares. For the purposes of covering any over-allotments in
connection with the distribution and sale of the Firm Shares, the Underwriters
are hereby granted, an option to purchase up to [_______] Shares representing
fifteen (15%) percent of the Firm Shares sold in the offering from the Company
(the “Over-allotment
Option”). Such additional
[ ]
Shares, the net proceeds of which will be deposited with the Company’s
account, are hereinafter referred to as “Option Shares.” The purchase
price to be paid for the Option Shares will be the same price per Option Share
as the price per Firm Shares set forth in Section 1.1.1 hereof. The Firm Shares
and the Options Share are hereinafter referred to collectively as the
“Public Securities.”
1.2.2. Exercise of
Option. The Over-allotment Option granted pursuant to Section
1.2.1 hereof may be exercised by the Representative as to all (at any time) or
any part (from time to time) of the Option Shares within 45 days after the
Effective Date. The Underwriters will not be under any obligation to purchase
any Option Shares 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 Representative, which must be confirmed in
writing by overnight mail or facsimile or other electronic transmission setting
forth the number of Option Shares to be purchased and the date and time for
delivery of and payment for the Option Shares (the “Option Closing Date”), which
will not be later than five (5) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the
Representative, at the offices of Loeb & Loeb LLP or at such other place
(including remotely by facsimile or other electronic transmission) as shall be
agreed upon by the Company and the Representative. If such delivery and payment
for the Option Shares does not occur on the Closing Date, the Option Closing
Date will be as set forth in the notice. 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 Shares specified in such
notice.
1.2.3. Payment and
Delivery. Payment for the Option Shares will be made on the
Option Closing Date by wire transfer in Federal (same day) funds as follows:
$[ ]
per Option ▇▇▇▇▇, [▇▇ % of the per option Share offering price], shall be
deposited in the Company’s account and the remaining proceeds shall be paid to
the order of the Company upon delivery to you of certificates (in form and
substance satisfactory to the Underwriters) representing the Option Shares (or
through the facilities of DTC) for the account of the Underwriters. The Option
Shares shall be registered in such name or names and in such authorized
denominations as the Representative may request in writing at least two (2) full
Business Days prior to the Option Closing Date. The Company shall not be
obligated to sell or deliver the Option Shares except upon tender of payment by
the Representative for applicable Option Shares.
1.3 Representative’s
Option.
1.3.1. Purchase
Option. The Company hereby agrees to issue and sell to the
Representative (and/or its designees) on the Closing Date an option
(“Representative’s Option”) for the purchase of an aggregate of ________ Shares
(5% of the Firm Shares) for an aggregate purchase price of $100.00. The
Representative’s Option shall be exercisable, in whole or in part, commencing on
a date which is one year from the Applicable Time and expiring on the five-year
anniversary of the Applicable Time at an initial exercise price per Share of
$____, which is equal to 125% of the initial public offering price of the Firm
Shares. The Representative’s Option and the Shares issuable upon exercise
thereof are sometimes hereinafter referred to collectively as the
“Representative’s Securities.” The Representative understands and agrees that
there are significant restrictions pursuant to FINRA Rule 2710 against
transferring the Representative’s Option and the underlying Shares during the
first year after the Effective Date and by its acceptance thereof shall agree
that it will not, sell, transfer, assign, pledge or hypothecate the
Representative’s Option, or any potion thereof, or be the subject of any
hedging, short sale, derivative, put or call transaction that would result in
the effective economic disposition of such securities for a period of one year
following the Effective Date to anyone other than (i) an Underwriter or a
selected dealer in connection with the Offering, or (ii) a bona fide officer or
partner of the Representative or of any such Underwriter or selected dealer; and
only if any such transferee agrees to the foregoing lock-up
restrictions.
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2009
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1.3.2. Delivery and
Payment. Delivery and payment for the Representative’s Option
shall be made on the Closing Date and shall be issued in the name or names and
in such authorized denominations as the Representative may request.
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2.
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Representations and
Warranties of the Company. The Company represents and
warrants to the Underwriters as of the Applicable Time (as defined below)
and as of the Closing Date and as of the Option Closing Date, if any, as
follows:
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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 and an amendment or amendments thereto, on Form S-1 (File No.
333-150695), including any related prospectus or prospectuses, for the
registration of the Public Securities and the Representative’s Securities under
the Securities Act of 1933, as amended (the “Act”), which registration
statement and amendment or amendments have been prepared by the Company in all
material respects in conformity with the requirements of the Act and the rules
and regulations of the Commission under the Act (the “Regulations”). Except as the
context may otherwise require, such registration statement 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 the Effective Date pursuant to paragraph (b)
of Rule 430A of the Regulations), is referred to herein as the “Registration Statement.” The
final prospectus in the form first furnished to the Underwriters for use in the
Offering, is hereinafter called the “Prospectus.” The Registration
Statement has been declared effective by the Commission on the date hereof.
“Applicable Time” means
[___ am/pm on _________________, 2009], on the Effective Date or such other time
as agreed to by the Company and the Representative.
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 Firm Shares, and
the Option Shares. The registration of the Firm Shares and the Option Shares
under the Exchange Act has been declared effective by the Commission on the date
hereof.
2.2 No Stop Orders,
etc. Neither the Commission nor, to the best of the Company’s
knowledge, any state regulatory authority has issued any order preventing or
suspending the use of the Prospectus or 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.
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2009
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2.3.1. 10b-5
Representation. At the respective times the Registration
Statement, the Prospectus and any post-effective amendments thereto become
effective (and at the Closing Date and the Option Closing Date, if
any):
(i) The
Registration Statement, the Prospectus and any post-effective amendments thereto
did and will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in all material
respects conform to the requirements of the Act and the
Regulations;
(ii) Neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, on such dates, do or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The representation and warranty made in
this Section 2.3.1(ii) does not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the
Company with respect to the Underwriters by the Representative expressly for use
in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto. The parties acknowledge and agree that such information
provided by or on behalf of any Underwriter consists solely of the names of the
Underwriters appearing in the “Underwriting and Plan of Distribution” section of
the Prospectus and the following additional disclosure contained in the
“Underwriting” section of the Prospectus: (i) the first paragraph under the
heading “Pricing of Securities”, (ii) the second and third paragraphs under the
heading “Other Terms” and (iii) all paragraphs under the heading “Foreign
Regulatory Restrictions on Purchase of the Common Stock (the “Underwriters’
Information”).
2.3.2. Disclosure of
Agreements. The agreements and documents described in the
Prospectus, the Registration Statement conform to the descriptions thereof
contained therein and there are no agreements or other documents required by the
Act and the Regulations to be described in the Prospectus, the Registration
Statement 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 it is or may be bound or affected and (i) that is referred to
in the Prospectus, or (ii) is material to the Company’s business, has been
duly authorized 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 therefore may be brought. None of such
agreements or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company’s knowledge, any other party is in
default thereunder and, to the best of the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or both, would
constitute a default thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its assets
or businesses, including, without limitation, those relating to environmental
laws and regulations.
2.3.3. Prior Securities
Transactions. No securities of the Company have been sold by
the Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company, except as
disclosed in the Registration Statement.
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2009
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2.3.4. Regulations. The
disclosures in the Registration Statement concerning the effects of Federal,
State, local and all foreign regulation on the Company’s business as currently
contemplated are correct in all material respects.
2.4 Changes
After Dates in Registration Statement.
2.4.1. No Material Adverse
Change. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
specifically stated therein: (i) there has been no material adverse change
in the condition, financial or otherwise, or business prospects of the Company;
(ii) there have been no material transactions entered into by the Company,
other than as contemplated pursuant to this Agreement; and (iii) no officer
or director of the Company has resigned from any position with the
Company.
2.4.2. Recent Securities
Transactions, etc. Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, and
except as may otherwise be indicated or contemplated herein or disclosed in the
Registration Statement and the Prospectus, 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. To the knowledge of the Company, PMB ▇▇▇▇▇
▇▇▇▇▇▇▇ (“PHD”), whose report is filed with the Commission as part of the
Registration Statement, are independent registered public accountants as
required by the Act and the Regulations. PHD has not, during the periods covered
by the financial statements included in the Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10A(g) of the Exchange
Act.
2.6 Financial
Statements. The financial statements, including the notes
thereto and supporting schedules included in the Registration Statement and
Prospectus fairly present the financial position and the results of operations
of the Company at the dates and for the periods to which they apply; and such
financial statements have been prepared in conformity with generally accepted
accounting principles (“GAAP”), consistently applied
throughout the periods involved; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The Registration Statement discloses 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.
2.7 Authorized Capital; Options,
etc. The Company had, at the date or dates indicated in the
Prospectus, the duly authorized, issued and outstanding capitalization as set
forth in the Registration Statement and the Prospectus. Based on the assumptions
stated in the Registration Statement 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 and the
Prospectus, on the Effective Date and on the Closing Date, there will be no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued Shares of the Company or any security convertible into
Shares of the Company, or any contracts or commitments to issue or sell Shares
or any such options, warrants, rights or convertible securities.
2.8 Valid
Issuance of Securities, etc.
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2009
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2.8.1. Outstanding
Securities. All issued and outstanding securities of the
Company issued prior to the transactions contemplated by this Agreement have
been duly authorized and validly issued and are fully paid and non-assessable;
the holders thereof have no rights of rescission with respect thereto, and are
not subject to personal liability by reason of being such holders; and none of
such securities were issued in violation of the preemptive rights of any holders
of any security of the Company or similar contractual rights granted by the
Company. The authorized Shares conform in all material respects to all
statements relating thereto contained in the Registration Statement and the
Prospectus. The offers and sales of the outstanding Shares 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, exempt from such registration
requirements.
2.8.2. Securities Sold Pursuant to
this Agreement. The Public Securities and Representative’s
Securities have been duly authorized for issuance and sale 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 Public 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 Public Securities and the Representative’s
Securities conform in all material respects to all statements with respect
thereto contained in the Registration Statement. The Representative’s Option
constitutes a valid and binding obligation of the Company to issue and sell,
upon exercise thereof and payment of the exercise price therefore, the number
and type of securities of the Company called for thereby in accordance with the
terms thereof and such Representative’s Option is enforceable against the
Company in accordance with its 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 therefore may be brought. When paid for and issued in accordance with
the Representative’s Option, the underlying Shares 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 underlying Shares 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 Representative’s Option has been duly and validly
taken.
2.9 Registration Rights of Third
Parties. Except as set forth in the Registration Statement 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 and the Representative’s Option
have been duly and validly authorized by the Company, and, when executed and
delivered, will constitute, the valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and
(iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought.
__________________,
2009
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2.11 No Conflicts,
etc. The execution, delivery, and performance by the Company
of this Agreement, the Representative’s Option and all ancillary documents, the
consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not and
will not, with or without the giving of notice or the lapse of time or both:
(i) result in a material breach of, or conflict with any of the terms and
provisions of, or constitute a material 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; (ii) result in
any violation of the provisions of the Certificate of Incorporation of the
Company (as the same may be amended from time to time, the “Certificate of
Incorporation”); 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 constituted as of the date hereof.
2.12 No Defaults;
Violations. No material 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 in violation of any 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. Except as described in the Registration Statement
and the Prospectus, 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 purpose as described in the
Prospectus. The disclosures in the Registration Statement concerning the effects
of federal, state, local and foreign regulation on this Offering and the
Company’s business purpose as currently contemplated are correct in all material
respects.
2.13.2. Transactions Contemplated
Herein. The Company has all corporate power and authority to
enter into this Agreement and to carry out the provisions and conditions hereof,
and all consents, authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or order of, and no
filing with, any court, government agency or other body is required for the
valid issuance, sale and delivery of the Securities and the consummation of the
transactions and agreements contemplated by this Agreement and the
Representative’s Option as contemplated by the Prospectus, except with respect
to applicable federal and state securities laws and the rules and regulations of
the Financial Industry Regulatory Authority, Inc. (“FINRA”).
2.14 D&O
Questionnaires. To the Company’s knowledge, all information
contained in the questionnaires (the “Questionnaires”) completed by each of the
Company’s directors and officers immediately prior to the Offering (the “Initial
Shareholders”) as well as in the Lock-Up Agreement provided to the Underwriters
is true and correct in all respects and the Company has not become aware of any
information which would cause the information disclosed in the questionnaires
completed by each Initial Shareholder to become inaccurate and
incorrect.
2.15 Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or, to
the Company’s knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any executive officer or director which has not been
disclosed in the Registration Statement and the Prospectus or in connection with
the Company’s listing application for the listing of the Shares and Common Stock
on the Nasdaq Capital Market (“Nasdaq”).
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2009
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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 the State of
Delaware as of the date hereof, and is duly qualified to do business and is in
good standing 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 assets, business or
operations of the Company.
2.17 Stop
Orders. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or any part
thereof.
2.18 Transactions
Affecting Disclosure to FINRA.
2.18.1. Finder’s
Fees. Except as described in the Registration Statement 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 Initial Shareholder 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 of its shareholders that may
affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. Payments Within Twelve
Months. Except as described in the Registration Statement and
the Prospectus, the Company has not made any direct or indirect payments (in
cash, securities or otherwise) to: (i) any person, as a finder’s fee,
consulting fee or otherwise, in consideration of such person raising capital for
the Company or introducing to the Company persons who raised or provided capital
to the Company; (ii) to any FINRA member; or (iii) to any person or
entity that has any direct or indirect affiliation or association with any FINRA
member, within the twelve months prior to the Effective Date, other than the
prior payment of $25,000 to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, the Representative and
payments to the Underwriters as provided hereunder in connection with the
Offering.
2.18.3. Use of
Proceeds. None of the net proceeds of the Offering will be
paid by the Company to any participating FINRA member or its affiliates, except
as specifically authorized herein.
2.18.4. FINRA
Affiliation. No officer, director or any beneficial owner of
the Company’s unregistered securities has any direct or indirect affiliation or
association with any FINRA member (as determined in accordance with the rules
and regulations of FINRA). The Company will advise the Representative and Loeb
& Loeb LLP if it learns that any officer, director or owner of at least 5%
of the Company’s outstanding Common Stock (or securities convertible into Common
Stock) is or becomes an affiliate or associated person of a FINRA member
participating in the Offering.
2.19 Foreign Corrupt Practices
Act. Neither the Company nor any of the directors , employees
or officers of the Company 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 assets, business or operations of the Company as reflected
in any of the financial statements contained in the Prospectus or (iii) if
not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company. The Company has taken reasonable steps
to ensure that its accounting controls and procedures are sufficient to cause
the Company to comply in all material respects with the Foreign Corrupt
Practices Act of 1977, as amended.
Cavico
Corp.
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2009
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2.20 Officers’
Certificate. Any certificate signed by any duly authorized
officer of the Company and delivered to you or to Loeb & Loeb LLP shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
2.21 Intentionally
omitted.
2.22 Lock-up
agreements. Each of the Company’s officers and directors, any
affiliated party of such officers and directors holding Shares (or securities
convertible into Shares of the Company) and any 5% or greater holder
of Shares collectively, (the “Lock-Up Parties”) have agreed that for
a period of 6 months, (the “Lock-Up Period”) from the effective date of the
Prospectus, such persons shall not sell, contract to sell, grant any option for
the sale or otherwise dispose of any of your equity securities, or any
securities convertible into or exercisable or exchangeable for our equity
securities, without the consent of the Representative. The Representative may
consent to an early release from the Lock-Up period if, in its opinion, the
market for common stock would not be adversely impacted by sales and in cases of
financial emergency of an officer, director or other stockholder. The Company
has caused each of the Lock-Up Parties to deliver to the Representative the
agreements of each Lock-Up Parties to the foregoing effect prior to the date
that the Company requests that the Commission declare the Registration Statement
effective under the Act.
2.23 Subsidiaries. Annex
2 to this agreement sets forth the ownership of all direct and indirect
subsidiaries of the Company (each a “Subsidiary” and together the
“Subsidiaries”). All direct and indirect subsidiaries of the Company are duly
organized and in good standing under the laws of the place of organization or
incorporation, and each such subsidiary and is in good standing 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 assets, business or operations of the
Company taken as a whole.
2.24 Related Party
Transactions. Except as disclosed in the Registration
Statement and the Prospectus, there are no business relationships or related
party transactions involving the Company or any other person required to be
described in the Prospectus that have not been described as
required.
2.25 Board of
Directors. The Board of Directors of the Company is comprised
of the persons set forth under the heading of the Prospectus captioned
“Management”. The qualifications of the persons serving as board members and the
overall composition of the board comply with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
the rules promulgated thereunder applicable to the Company and the rules of
Nasdaq. At least one member of the Board of Directors of the Company qualifies
as a “financial expert” as such term is defined under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules promulgated thereunder and the rules of Nasdaq. In addition,
at least a majority of the persons serving on the Board of Directors qualify as
“independent” as defined under the rules of Nasdaq.
2.26 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance.
2.26.1. Disclosure
Controls. The Company has developed and currently maintains
disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15
of the Exchange Act, and such controls and procedures are effective to ensure
that all material information concerning the Company will be made known on a
timely basis to the individuals responsible for the preparation of the Company’s
Exchange Act filings and other public disclosure documents.
Cavico
Corp.
__________________,
2009
Page 10 of
26
2.26.2. Compliance. The
Company is, or on the Effective Date will be, in material compliance with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 applicable to it, and has
implemented or will implement such programs and taken reasonable steps to ensure
the Company’s future compliance (not later than the relevant statutory and
regulatory deadlines therefore) with all the material provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
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3.
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Covenants of the
Company. The Company covenants and agrees as
follows:
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3.1 Amendments to Registration
Statement. The Company will deliver to the Representative,
prior to filing, any amendment or supplement to the Registration Statement or
Prospectus proposed to be filed after the Effective Date and not file any such
amendment or supplement to which the Representative shall reasonably object in
writing.
3.2 Federal
Securities Laws.
3.2.1. Compliance. During
the time when a Prospectus is required to be delivered under the Act, the
Company will use its best efforts to comply with all requirements imposed upon
it by the Act, the Regulations and the Exchange Act and by the regulations under
the Exchange Act, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Public Securities in accordance
with the provisions hereof and the Prospectus. If at any time when a Prospectus
relating to the Public Securities is required to be delivered under the Act, any
event shall have occurred as a result of which, in the opinion of counsel for
the Company or counsel for the Underwriters, the Prospectus, as then amended or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company will notify the Representative promptly and
prepare and file with the Commission, subject to Section 3.1 hereof, an
appropriate amendment or supplement in accordance with Section 10 of the
Act.
3.2.2. Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Representative) with the Commission pursuant to
the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act
Registration. For a period of three years from the Effective
Date, the Company will use its best efforts to maintain the registration of the
Shares, the shares underlying the Representative’s Option under the provisions
of the Exchange Act. The Company will not deregister the Shares under the
Exchange Act without the prior written consent of the
Representative.
3.2.4. Free Writing
Prospectuses. The Company represents and agrees that it has
not made and will not make any offer relating to the Public Securities that
would constitute an issuer free writing prospectus, as defined in Rule 433 of
the 1933 Act, without the prior consent of the Representative. Any such free
writing prospectus consented to by the Representative is hereinafter referred to
as a “Permitted Free Writing
Prospectus.” The Company represents that its will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus” as defined in
Rule 433, and has complied and will comply with the applicable requirements of
Rule 433 of the 1933 Act, including timely Commission filing where required,
legending and record keeping.
Cavico
Corp.
__________________,
2009
Page 11 of
26
3.3 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 the
Prospectus is required to be delivered under the Act or the Exchange Act such
number of copies of each Prospectus as such Underwriters may reasonably request
and, as soon as the Registration Statement or any amendment or supplement
thereto becomes effective, deliver to you 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.
3.4 Effectiveness and Events
Requiring Notice to the Representative. The Company will use
its best efforts to cause the Registration Statement to remain effective with a
current prospectus for at least nine (9) months from the Applicable Time. and
will notify the Representative immediately and confirm the notice in writing:
(i) of the effectiveness of the Registration Statement and any amendment
thereto; (ii) of the issuance by the Commission of any stop order or of the
initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any state securities commission of any proceedings
for the suspension of the qualification of the Securities for offering or sale
in any jurisdiction or of the initiation, or the threatening, of any proceeding
for that purpose; (iv) of the mailing and delivery to the Commission for
filing of any amendment or supplement to the Registration Statement or
Prospectus; (v) of the receipt of any comments or request for any
additional information from the Commission; and (vi) of the happening of
any event during the period described in this Section 3.4 hereof that, in the
judgment of the Company, makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Commission or any state securities commission shall enter
a stop order or suspend such qualification at any time, the Company will make
every reasonable effort to obtain promptly the lifting of such
order.
3.5 Review of Financial
Statements For a period of five (5) years from the Effective Date, 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.
3.6 Secondary Market Trading and
Standard & Poor’s The Company will apply to be included
in Standard & Poor’s Daily News and Corporation Records Corporate
Descriptions for a period of five (5) years immediately after the Effective
Date.
3.7 Intentionally
omitted.
3.8 Financial Public Relations
Firm. As of the Effective Date, the Company shall have
retained a financial public relations firm reasonably acceptable to the
Representative and the Company, which shall initially be CCG Investor Relations
Inc., which firm will be experienced in assisting issuers in public offerings of
securities and in their relations with their security holders, and continuing to
retain such firm or another firm reasonably acceptable to ▇▇▇▇▇▇ for a period of
no less than two (2) years after the Effective Date.
3.9 Reports to the
Representative.
3.9.1. Periodic Reports,
etc. For a period of three years from the Effective Date, the
Company will furnish to the Representative 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 also 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
prepared and filed by the Company; (iv) five copies of each Registration
Statement; (v) such additional documents and information with respect to
the Company and the affairs of any future subsidiaries of the Company as the
Representative may from time to time reasonably request; provided the
Representatives shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and Loeb & Loeb LLP in connection with the Representative’s
receipt of such information. Documents filed with the Commission pursuant to its
▇▇▇▇▇ system shall be deemed to have been delivered to the Representative
pursuant to this Section.
Cavico
Corp.
__________________,
2009
Page 12 of
26
3.9.2. Transfer
Sheets. For a period of three years from the Effective Date,
the Company shall retain a transfer and registrar agent acceptable to the
Representative (the “Transfer
Agent”) and will furnish to the Representatives at the Company’s sole
cost and expense such transfer sheets of the Company’s securities as the
Representative may reasonably request, including the daily and monthly
consolidated transfer sheets of the Transfer Agent and DTC. Pacific Stock
Transfer and Trust Company is acceptable to the Underwriters to act as Transfer
Agent for the Company’s Shares.
3.9.3. Trading
Reports. During such time as the Public Securities are listed
on NASDAQ the Company shall provide to the Representative, at its expense, such
reports published by the NASDAQ relating to price trading of the Public
Securities, as the Representative shall reasonably request.
3.10 Payment
of Expenses.
3.10.1. General Expenses Related to
the Offering. The Company hereby agrees to pay on each of the
Closing Date and the Option Closing Date, if any, to the extent not paid at the
Closing Date, all expenses incident to the performance of the obligations of the
Company under this Agreement, including, but not limited to: (i) the costs
of all mailing and printing of the underwriting documents (including, without
limitation, the Underwriting Agreement, any Blue Sky Surveys and, if
appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement,
Underwriters’ Questionnaire and Power of Attorney), Registration Statements,
Prospectuses and all amendments, supplements and exhibits thereto and as many
preliminary and final Prospectuses as Representative may reasonably deem
necessary; (ii) the costs of preparing, printing and delivering
certificates representing the Shares; (iii) all COBRADesk filing fees
associated with the review of the Offering by FINRA; all fees and expenses
relating to the listing of such Shares on the Nasdaq Capital Market and on such
other stock exchanges as the Company and Representative together determine; (iv)
the fees and expenses of the Company’s legal counsel and other agents and
representatives; (v) up to $5,000 for commemorative lucite tombstones; (vi)
all fees, expenses and disbursements relating to background checks of the
Company’s officers and directors in an amount not to exceed $5,000 per
individual (it being understood that such checks have already been completed
with respect to the current Company officers and directors, and that in the
event that the Company adds additional senior executive officers prior to the
completion of the Offering, the Company will pay up to $5,000 for the expenses
and disbursements for the background checks for each such additional senior
executive officer); (vii) all other costs and expenses incident to the
performance by the Company of its obligations hereunder which are not otherwise
specifically provided for in this Section 3.10.1 including, without limitation,
the Company’s “road-show” expenses; (viii) all fees, expenses and disbursements
relating to the registration or qualification of such Shares under the “blue
sky” securities laws of such states and other jurisdictions as Representative
may reasonably designate (including, without limitation, all filing and
registration fees, and the reasonable fees and disbursements of Representative’s
counsel, it being agreed that such fees and expenses will be limited to: (i) if
the Offering is commenced on either the Nasdaq National Market or the AMEX, the
Company will make a payment by the Company of $5,000 to such counsel at Closing
or (ii) if the Offering is commenced on the Nasdaq Capital Market or on the Over
the Counter Bulletin Board, the Company will make a payment of $15,000 to such
counsel upon the commencement of “blue sky” work by such counsel and an
additional $5,000 at Closing); (ix) the costs and expenses of the financial
public relations firm referred to in Section 3.8 hereof, (x) the fees and
expenses of the transfer agent for the Common Stock, (xi) stock transfer and/or stamp taxes, if
any, payable upon the transfer of securities from the Company to the
Underwriters and (xii) the fees and expenses of the Company’s
accountants. The Representative may also 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 herein to be paid by the Company to the
Representative.
Cavico
Corp.
__________________,
2009
Page 13 of
26
3.10.2. Non-accountable
Expenses. The Company further agrees that, in addition to the
expenses payable pursuant to Section 3.10.1, on the Closing Date it will pay to
the Representative a non-accountable expense allowance equal to one percent
(1.00%) of the gross proceeds received by the Company from the sale of the Firm
Shares by deduction from the proceeds of the Offering contemplated herein;
provided however, that $25,000 in the aggregate was previously paid by the
Company to the Representative shall be deducted from the non-accountable expense
allowance payable to the Representative on the Closing Date.
3.11 Application of Net
Proceeds. The Company will apply the net proceeds from the
Offering received by it in a manner consistent with the application described
under the caption “Use Of Proceeds” in the Prospectus.
3.12 Delivery of Earnings
Statements to Security Holders. The Company will make
generally available to its security holders as soon as practicable, but not
later than the first day of the fifteenth full calendar month following the
Effective Date, an earnings statement (which need not be certified by
independent public or independent certified public accountants unless required
by the Act or the Regulations, but which shall satisfy the provisions of Rule
158(a) under Section 11(a) of the Act) covering a period of at least twelve
consecutive months beginning after the Effective Date.
3.13 Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Representative) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
3.14 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 GAAP and
to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
3.15 Accountants. As
of the Effective Date, the Company shall retain PHD or other independent public
accountants reasonably acceptable to the Representative, and the Company shall
continue to retain a nationally recognized independent certified public
accounting firm for a period of at least three years after the Effective
Date.
3.16 FINRA. The
Company shall advise the Representative (who shall make an appropriate filing
with FINRA) if it is aware that any 5% or greater shareholder of the Company
becomes an affiliate or associated person of an FINRA member participating in
the distribution of the Company’s Public Securities.
3.17 No Fiduciary
Duties. The Company acknowledges and agrees that the
Underwriters’ responsibility to the Company is solely contractual in nature and
that none of the Underwriters or their affiliates or any Selling Agent shall be
deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary
duty to the Company or any of its affiliates in connection with the Offering and
the other transactions contemplated by this Agreement.
Cavico
Corp.
__________________,
2009
Page 14 of
26
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4.
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Conditions of
Underwriters’ Obligations. The obligations of the
several Underwriters to purchase and pay for the Shares, 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:
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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., Eastern time, on the date of this
Agreement or such later date and time as shall be consented to in writing by
you, and, at each of the Closing Date and the Option Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
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 Loeb & Loeb LLP.
4.1.2. FINRA
Clearance. By the Effective Date, the Representative shall
have received clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriters as described in the Registration
Statement.
4.1.3. Nasdaq Stock Market
Clearance. On the Closing Date, the Company’s Common Stock,
including the Public Shares shall have been approved for listing on the
NASDAQ.
4.1.4. Free Writing
Prospectuses. The Representative covenants with the Company
that the Underwriters will not use, authorize the use of, refer to, or
participate in the planning for the use of a “free writing prospectus” as
defined in Rule 405 under the 1933 Act, which term includes use of any written
information furnished by the Commission to the Company and not incorporated by
reference into the Registration Statement, without the prior written consent of
the Company. Any such free writing prospectus consented to by the Company is
hereinafter referred to as an “Underwriter Free Writing
Prospectus.”
4.2 Company
Counsel Matters.
4.2.1. Closing Date Opinion of
Counsel. On the Closing Date, the Representative shall have
received the favorable opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, counsel to the Company (“Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
”), dated the Closing Date, addressed to the Representative:
(i) Based
solely on a certificate of good standing dated within 5 days of the Closing
Date, the Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware.
(ii) All
issued and outstanding securities of the Company 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. The offers and sales of the outstanding securities were at all
relevant times either registered under the Act or exempt from such registration
requirements. The authorized, and to the extent of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ’s knowledge, outstanding capital stock of the Company is as set forth
in the Prospectus.
Cavico
Corp.
__________________,
2009
Page 15 of
26
(iii) The
Shares 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 solely by reason of being such holders. The
Shares included in the Shares 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. When issued, the Option Shares will
constitute valid and binding obligations of the Company to issue and sell, upon
exercise thereof and payment therefore, the number and type of securities of the
Company called for thereby and the Option Shares, when issued, in each case, are
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 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 therefore may be brought. The certificates representing the
Securities are in due and proper form.
(iv) This
Agreement and the Representative’s Option have each been duly and validly
authorized and, when executed and delivered by the Company, constitute, and the
Representative’s Option Shares has been duly and validly authorized by the
Company and, when executed and delivered, 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 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 therefore may be brought.
(v) The
execution, delivery and performance of this Agreement and the Representative’s
Option Shares and the Lock-up Agreements and compliance by the Company with the
terms and provisions thereof and the consummation of the transactions
contemplated thereby, and the issuance and sale of the securities, do not and
will not, with or without the giving of notice or the lapse of time, or both,
(a) to such counsel’s knowledge, based on representations of the Company
made to such counsel and contained in a certificate provided by an executive
officer of the Company, 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 (c) to such counsel’s knowledge, violate any statute or
any judgment, order or decree, rule or regulation 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.
(vi) The
Registration Statement and the Prospectus and any post-effective 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 conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus. No United
States or state statute or regulation required to be described in the Prospectus
is not described as required (except as to the Blue Sky laws of the various
states, as to which such counsel expresses no opinions), nor are any contracts
or documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement not so described or filed as required (except for the contracts and
documents described in the “Underwriting” section of the Registration Statement,
as to which such counsel expresses no opinions).
Cavico
Corp.
__________________,
2009
Page
16 of 26
(vii) Based
solely on a notice of effectiveness received from the Commission, 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.
(viii) 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
Registration Statement and the Prospectus, will not be, an “investment company”
as defined in the Investment Company Act of 1940, as amended.
(ix) The
opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall further include a
statement to the effect that such counsel has participated in conferences with
officers and other representatives of the Company, the Underwriters and the
independent registered public accounting firm of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
contained therein 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 and the Prospectus contained therein, solely on the basis of the
foregoing without independent check and verification, no facts have come to the
attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto, at the time the Registration Statement or
amendment became effective, contained an 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 not misleading or the Prospectus or any amendment or
supplement thereto, at the time they were filed pursuant to Rule 424(b) or at
the date of such counsel’s opinion, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express no
view and shall not be deemed to have rendered an opinion with respect to
the financial information, statistical data and information and matters
regarding non-United States laws, rules and regulations included in the
Registration Statement or the Prospectus).
(x) The
Company has taken all necessary corporate action to authorize and approve a
reverse stock split of its Common Stock on the basis of one share of Common
Stock for each and every [ten] shares of Common Stock issued and outstanding
prior to the Applicable Time and the reverse stock split has become effective
under the laws of the State of Delaware.
4.2.2. On
the Closing Date, the Representative shall have received the favorable opinion
of [_______________] counsel to the Company, reasonably acceptable to the
Representative, related to, among other things, the descriptions of laws of
Vietnam and the organization of the Company’s Vietnamese Subsidiaries,
affiliates and ownership structure, dated the Closing Date and addressed to the
Representative.
4.2.3. [[Use if there are any non-Vietnamese
Subsidiaries or affiliates] On the Closing Date, the Representative shall
have received the favorable opinion of [_______________] counsel to the Company,
reasonably acceptable to the Representative, related to, among other things, the
descriptions of laws of _____________ and the organization of the Company’s
____________affiliates and ownership structure, dated the Closing Date and
addressed to the Representative.]
Cavico
Corp.
__________________,
2009
Page 17 of
26
4.2.4. Option Closing Date Opinions
of Counsel. On the Option Closing Date, if any, the Representative shall
have received the favorable opinions of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, and [Insert name of Vietmanese counsel] dated the Option
Closing Date, addressed to the Representative and in form and substance
reasonably satisfactory to the Representative, confirming as of the Option
Closing Date, the statements made by Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and [Insert
name of Vietnamese counsel] in their respective opinions delivered on the
Closing Date.
4.2.5. Reliance. In
rendering such opinions, such counsel may rely: (i) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Representative) of other counsel reasonably acceptable to the Representative,
familiar with the applicable laws; and (ii) as to matters of fact, to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdiction having
custody of documents respecting the corporate existence or good standing of the
Company, provided that copies of any such statements or certificates shall be
delivered to Loeb & Loeb LLP if requested. The opinions of Sichenzia ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and [Insert name of Vietnamese counsel] and any opinion relied
upon by Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or [Insert name of Vietnamese counsel]
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 Cold Comfort
Letter. At the time this Agreement is executed, and at each of
the Closing Date and the Option Closing Date, if any, you shall have received a
letter, addressed to the Representative and in form and substance satisfactory
in all respects (including the non-material nature of the changes or decreases,
if any, referred to in clause (iii) below) to you and to Loeb & Loeb LLP
from PHD dated, respectively, as of the date of this Agreement and as of the
Closing Date and the Option Closing Date, if any:
(i) Confirming
that they are independent public 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
Prospectus, provided to the Company any non-audit services, as such term is used
in Section 10A(g) of the Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and the published
Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that:
(a) the unaudited financial statements of the Company included in the
Registration Statement 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 GAAP applied on a basis substantially
consistent with that of the audited financial statements of the Company included
in the Registration Statement; (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 shareholders’ equity of the Company as compared with amounts
shown in the December 31, 2008 balance sheet included in the Registration
Statement, other than as set forth in or contemplated by the Registration
Statement, or, if there was any decrease, setting forth the amount of such
decrease, and (c) during the period from December 31, 2008 to a specified
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 decrease in revenues, net
earnings or net earnings per share, in each case as compared with the
corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement, or, if there was any such decrease,
setting forth the amount of such decrease;
Cavico
Corp.
__________________,
2009
Page 18 of
26
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company (including a breakdown of commercial paper
and notes payable to banks and related parties);
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Prospectus in each case to the extent that such
amounts, numbers, percentages, statements and information may be derived from
the general accounting records, including work sheets, of the Company and
excluding any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not since the Company’s formation brought to the attention of the
Company’s management any reportable condition related to internal structure,
design or operation as defined in the Statement on Auditing Standards No. 60
“Communication of Internal Control Structure Related Matters Noted in an Audit,”
in the Company’s internal controls; and
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as you
may reasonably request.
4.4 Officers’
Certificates.
4.4.1. Officers’
Certificate. At each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of
the Company signed by the Chairman of the Board and Chief Executive Officer of
the Company, dated the Closing Date or the 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 the Option
Closing Date, as the case may be, and that the conditions set forth in Section
4.5 hereof have been satisfied as of such date and that, as of the 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 Representative will have received such other and further
certificates of officers of the Company as the Representative may reasonably
request.
4.4.2. Secretary’s
Certificate. At each of the Closing Date and the Option
Closing Date, if any, the Representative shall have received a certificate of
the Company signed by the Secretary or Assistant Secretary of the Company, dated
the Closing Date or the Option Date, as the case may be, respectively,
certifying: (i) that the Certificate of Incorporation are true and
complete, have not been modified and are in full force and effect;
(ii) that the resolutions of the Company’s Board of Directors relating to
the public offering contemplated by this Agreement are in full force and effect
and have not been modified; (iii) all correspondence between the Company or
its counsel and the Commission; and (iv) as to the incumbency of the
officers of the Company. The documents referred to in such certificate shall be
attached to such certificate.
Cavico
Corp.
__________________,
2009
Page 19
of 26
4.5 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 involving a prospective material adverse change in the
condition or prospects or the business activities, financial or otherwise, of
the Company from the latest dates as of which such condition is set forth in the
Registration Statement and Prospectus; (ii) no action suit or proceeding,
at law or in equity, shall have been pending or threatened against the Company
or any Initial Shareholder 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 and Prospectus; (iii) no stop order
shall have been issued under the Act and no proceedings therefore shall have
been initiated or threatened by the Commission; and (iv) the Registration
Statement and the Prospectus and any amendments or supplements thereto shall
contain all material statements which are required to be stated therein in
accordance with the Act and the Regulations and shall conform in all material
respects to the requirements of the Act and the Regulations, and neither the
Registration Statement nor the Prospectus nor any amendment 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 light of the circumstances under which they were made,
not misleading.
4.6 Delivery
of Agreements.
4.6.1. Effective Date
Deliveries. On the Effective Date, the Company shall have
delivered to the Representative executed copies of this Agreement and the
Lock-Up Agreement.
4.6.2. Closing Date
Deliveries. On the Closing Date, the Company shall have
delivered to the Representative executed copies of the Representative’s Options
and the Shares.
4.7 Completion of Reverse Stock
Split. Prior to the Applicable Time, the Company shall have
completed all necessary corporate action and filed all necessary certificates or
amendments to its Certificate of Incorporation with the Secretary of State of
the State of Delaware, to effectuate a reverse stock split on the basis of one
share of Common Stock for each [40] shares of Common Stock issued and
outstanding prior to the Applicable Time.
|
5.
|
Indemnification.
|
5.1 Indemnification
of Underwriters.
5.1.1. General. Subject
to the conditions set forth below, the Company agrees to indemnify and hold
harmless each of the Underwriters, and each dealer selected by the
Representative that participates in the offer and sale of the Securities (each a
“Selected Dealer”) and each of their respective directors, officers and
employees and each person, if any, who controls any such Underwriter
(“Controlling Person”) within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against any and all loss, liability, claim, damage
and expense whatsoever (including but not limited to any and all legal or other
expenses reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between any of the Underwriters and the Company or
between any of the Underwriters and any third party or otherwise) to which they
or any of them may become subject under the Act, the Exchange Act or any other
statute or at common law or otherwise or under the laws 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 materials or information provided to investors by, or
with the approval of, the Company in connection with the marketing of the
offering of the Securities, including any “road show” or investor presentations
made to investors by the Company (whether in person or electronically); 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
Public Shares under the securities laws thereof or filed with the Commission,
any state securities commission or agency, 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 light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to an Underwriter by or on behalf of such
Underwriter expressly for use in any Preliminary Prospectus, the Registration
Statement or Prospectus, or any amendment or supplement thereof, or in any
application, as the case may be.. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of any Underwriter to the extent that any loss, liability, claim,
damage or expense of such Underwriter results from the fact that a copy of the
Prospectus was not given or sent to the person asserting any such loss,
liability, claim or damage at or prior to the written confirmation of sale of
the Securities to such person as required by the Act and the Regulations, and if
the untrue statement or omission has been corrected in the Prospectus, unless
such failure to deliver the Prospectus was a result of non-compliance by the
Company with its obligations under Section 3.3 hereof. The Company agrees
promptly to notify the Representative of the commencement of any litigation or
proceedings against the Company or any of its officers, directors or controlling
persons in connection with the issue and sale of the Public Securities or in
connection with the Registration Statement or Prospectus.
Cavico
Corp.
__________________,
2009
Page 20
of 26
5.1.2. Procedure. If
any action is brought against an Underwriter, a Selected Dealer or a Controlling
Person in respect of which indemnity may be sought against the Company pursuant
to Section 5.1.1, such Underwriter or such Selected Dealer shall promptly notify
the Company in writing of the institution of such action and the Company shall
assume the defense of such action, including the employment and fees of counsel
(subject to the reasonable approval of such Underwriter or such Selected Dealer,
as the case may be) and payment of actual expenses. Such Underwriter, such
Selected Dealer 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, such Selected Dealer or 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, or (ii) the Company shall not have employed counsel to
have charge of the defense of such action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to the
Company (in which case the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events the reasonable fees and expenses of not more than one additional
firm of attorneys selected by the Underwriter, Selected Dealer and/or
Controlling Person shall be borne by the Company. Notwithstanding anything to
the contrary contained herein, if any Underwriter, Selected Dealer or
controlling person shall assume the defense of such action as provided above,
the Company shall have the right to approve the terms of any settlement of such
action which approval shall not be unreasonably withheld.
5.2 Indemnification of the
Company. Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless the Company, its directors, officers and
employees and agents who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act 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 Prospectus or any
amendment or supplement thereto or in any application, in reliance upon, and in
strict conformity with, written information furnished to the Company with
respect to such Underwriter by or on behalf of the Underwriter expressly for use
in such Preliminary Prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereto or in any such application. 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 Prospectus or any
amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to the several Underwriters
by the provisions of Section 5.1.2.
Cavico
Corp.
__________________,
2009
Page 21
of 26
5.3 Contribution.
5.3.1. Contribution
Rights. In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 5 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 5 provides for
indemnification in such case, or (ii) contribution under the Act, the Exchange
Act or otherwise may be required on the part of any such person in circumstances
for which indemnification is provided under this Section 5, then, and in each
such case, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount appearing
on the cover page of the Prospectus bears to the initial offering price
appearing thereon and the Company is responsible for the balance; provided,
that, no person guilty of a fraudulent misrepresentation (within the meaning of
Section ll (f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 5.3.1, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section, each director, officer and employee of
an Underwriter or the Company, as applicable, and each person, if any, who
controls an Underwriter or the Company, as applicable, within the meaning of
Section 15 of the Act shall have the same rights to contribution as such
Underwriter or the Company, as applicable.
5.3.2. Contribution
Procedure. Within fifteen days after receipt by any party to
this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party (“contributing party1’),
notify the contributing party of the commencement thereof, but the omission to
so notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to supersede, to
the extent permitted by law, any right to contribution under the Act, the
Exchange Act or otherwise available. Each Underwriter’s obligations to
contribute pursuant to this Section 5.3 are several and not
joint.
Cavico
Corp.
__________________,
2009
Page 22
of 26
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6.
|
Default
by an Underwriter.
|
6.1 Default Not Exceeding 10% of
Firm Shares or Option Shares. If any Underwriter or
Underwriters shall default in its or their obligations to purchase the Firm
Shares or the Option Shares, if the Over-allotment Option is exercised,
hereunder, and if the number of the Firm Shares or Option Shares with respect to
which such default relates does not exceed in the aggregate 10% of the number of
Firm Shares or Option Shares that all Underwriters have agreed to purchase
hereunder, then such Firm Shares or Option Shares to which the default relates
shall be purchased by the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
6.2 Default Exceeding 10% of
Firm Shares or Option Shares. In the event that the default
addressed in Section 6.1 relates to more than 10% of the Firm Shares or Option
Shares, you may in your discretion arrange for yourself or for another party or
parties to purchase such Firm Shares or Option Shares to which such default
relates on the terms contained herein. If, within one (1) Business Day after
such default relating to more than 10% of the Firm Shares or Option Shares, you
do not arrange for the purchase of such Firm Shares or Option Shares, then the
Company shall be entitled to a further period of one (1) Business Day within
which to procure another party or parties satisfactory to you to purchase said
Firm Shares or Option Shares on such terms. In the event that neither you nor
the Company arrange for the purchase of the Firm Shares or Option Shares to
which a default relates as provided in this Section 6, this Agreement will
automatically be terminated by you or the Company without liability on the part
of the Company (except as provided in Sections 3.10 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 Shares, this Agreement will
not terminate as to the Firm Shares; and provided further that nothing herein
shall relieve a defaulting Underwriter of its liability, if any, to the other
Underwriters and to the Company for damages occasioned by its default
hereunder.
6.3 Postponement of Closing
Date. In the event that the Firm Shares or Option Shares 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,
you 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 (5)
Business Days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment to the
Registration Statement or the Prospectus that in the opinion of counsel for the
Underwriter 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.
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7.
|
Additional
Covenants.
|
7.1 Board Composition and Board
Designations. The Company shall ensure that: (i) the
qualifications of the persons serving as board members and the overall
composition of the board comply with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules promulgated thereunder and with the listing requirements of , NASDAQ or
any other national securities exchange or national securities association, as
the case may be, in the event the Company seeks to have its Public Securities
listed on another exchange or quoted on an automated quotation system, and
(ii) if applicable, at least one member of the board of directors qualifies
as a “financial expert” as such term is defined under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules promulgated thereunder.
Cavico
Corp.
__________________,
2009
Page 23
of 26
7.2 Right of First
Refusal. The Company agrees that if the Shares are sold in
accordance with the terms of this Underwriting Agreement, the Representative
shall have an irrevocable preferential right for a period of twelve (12) months
from the date the Offering is completed to purchase for its account or to sell
for the account of the Company, or any subsidiary of or successor to the Company
any securities (whether debt or equity or any combination thereof) of the
Company or any such subsidiary or successor which the Company or any such
subsidiary or successor may seek to sell whether with or without or through an
underwriter, placement agent or broker-dealer and whether pursuant to
registration under the Act or otherwise. The Company and any such subsidiary or
successor will consult the Representative with regard to any such proposed
financing and will offer the Representative the opportunity to purchase or sell
any such securities on terms not more favorable to the Company or any such
subsidiary or successor, as the case may be, than it or they can secure
elsewhere. If the Representative fails to accept such offer within 10 business
days after the mailing of a notice containing the material terms of the proposed
financing proposal by registered mail or overnight courier service addressed to
the Representative, then the Representative shall have no further claim or right
with respect to the financing proposal contained in such notice. If, however,
the terms of such financing proposal are subsequently modified in any material
respect, the preferential right referred to herein shall apply to such modified
proposal as if the original proposal had not been made. The Representative’s
failure to exercise its preferential right with respect to any particular
proposal shall not affect its preferential rights relative to future proposals.
The Company shall have the right, at its option, to designate the Representative
as lead underwriter or co-manager of any underwriting group or co-placement
agent of any proposed financing in satisfaction of its obligations hereunder,
and the Representative shall be entitled to receive as its compensation 50% of
the compensation payable to the underwriting or placement agent group when
serving as co-manager or co-placement agent and 33% of the compensation payable
to the underwriting or placement agent group when serving as co-manager or
co-placement agent with respect to a proposed financing in which there are three
co-managing or lead underwriters or co-placement agents.
7.3 Prohibition on Press
Releases and Public Announcements. The Company will not issue
press releases or engage in any other publicity, without the Representative’s
prior written consent, for a period ending at 5:00 p.m. Eastern time on the
first business day following the 40th day following the Closing Date, other than
normal and customary releases issued in the ordinary course of the Company’s
business.
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8.
|
Effective
Date of this Agreement and Termination
Thereof.
|
8.1 Effective
Date. This Agreement shall become effective when both the
Company and the Representative have executed the same and delivered counterparts
of such signatures to the other party.
8.2 Termination. You
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 your 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 NASDAQ, the NASDAQ
Global Market or the NASDAQ Capital Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required by
FINRA 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
new 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
(v) if a moratorium on foreign exchange trading has been declared which
materially adversely impacts the United States securities markets, 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 your
opinion, make it inadvisable to proceed with the delivery of the Firm Shares or
Option Shares, or (vii) if the Company is in material breach of any of its
representations, warranties or covenants hereunder, or (viii) if the
Representative shall have become aware after the date hereof of such a material
adverse change in the conditions or prospects of the Company, or such adverse
material change in general market conditions as in the Representative’s judgment
would make it impracticable to proceed with the offering, sale and/or delivery
of the securities or to enforce contracts made by the Underwriters for the sale
of the securities.
Cavico
Corp.
__________________,
2009
Page 24
of 26
8.3 Expenses. Except
in the case of a default by the Underwriters, pursuant to Section 6.2 above, in
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the Company shall be obligated to pay to the Underwriters
their actual and accountable out of pocket expenses related to the transactions
contemplated herein then due and payable (including the fees and disbursements
of Loeb & Loeb LLP up to $_________).
8.4 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.
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9.
|
Miscellaneous.
|
9.1 Notices. All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed (registered or certified mail, return
receipt requested), personally delivered or sent by facsimile transmission and
confirmed and shall be deemed given when so delivered or faxed and confirmed or
if mailed, two days after such mailing.
If to the
Representative:
▇▇▇▇▇▇
and ▇▇▇▇▇▇▇, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax No.:
▇▇▇.▇▇▇.▇▇▇▇
Copy
to:
Loeb
& Loeb LLP LLP
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax:
▇▇▇-▇▇▇-▇▇▇▇
If to the
Company:
Cavico
Corp..
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇
Fax:
714-__________
Copy
to:
Cavico
Corp.
__________________,
2009
Page 25
of 26
Sichenzia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax:
▇▇▇-▇▇▇-▇▇▇▇
9.2 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.
9.3 Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
9.4 Entire
Agreement. This Agreement (together with the other agreements
and documents being delivered pursuant to or in connection with this Agreement)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
9.5 Binding
Effect. This Agreement shall inure solely to the benefit of
and shall be binding upon the Representative, the Underwriters, the Company and
the controlling persons, directors and officers referred to in Section 5 hereof,
and their respective successors, legal representatives and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provisions
herein contained. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of securities from any of the
Underwriters.
9.6 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or summons to be
served upon the Company may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 11 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim. The Company agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefor.
9.7 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 facsimile or email/pdf transmission shall constitute valid and
sufficient delivery thereof.
9.8 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.
Cavico
Corp.
__________________,
2009
Page 26
of 26
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,
CAVICO
CORP.
By:
Name:
Title:
Accepted
on the date first above written.
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC
By:
Name:
Title: