UNITS ACQUICOR TECHNOLOGY INC. UNDERWRITING AGREEMENT
Exhibit 1.1
__________ UNITS
___________, 2006
ThinkEquity Partners
as Representative of the Several Underwriters
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as Representative of the Several Underwriters
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Ladies and Gentlemen:
The undersigned, Acquicor Technology Inc., a Delaware corporation (“Company”), hereby confirms in
this Underwriting Agreement (this “Agreement”) its agreement with ThinkEquity Partners (being
referred to herein variously as “you,” “TEP” or the “Representative”) and with the other
underwriters named on Schedule I hereto for which TEP is acting as Representative (the
Representative and the other Underwriters being collectively called the “Underwriters” or,
individually, an “Underwriter”) as follows:
1. Purchase and Sale of Securities.
1.1 Firm Securities.
1.1.1 Purchase of Firm Units. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated, agree to purchase
from the Company an aggregate of ___units (“Firm Units”) of the Company, at a purchase
price (net of discounts and commissions and subject to Section 3.22 hereof) of $ per Firm Unit.
The Firm Units are to be offered initially to the public (“Offering”) at the offering price of
$ per Firm Unit. Each Firm Unit consists of one share of the Company’s common stock, par value
$0.0001 per share (“Common Stock”), and two warrants (“Warrant(s)”). The shares of Common Stock
and the Warrants included in the Firm Units will not be separately transferable until 20 days after
the earlier to occur of (i) the expiration of the Over-allotment Option (as defined in Section
1.2.1 hereof) or (ii) the exercise in full or in part by the Underwriters of the Over-allotment
Option; provided, however, that in no event will the Underwriters permit separate
trading before an audited balance sheet has been prepared reflecting receipt by the Company of the
proceeds of the Offering and the Company has filed with the Securities and Exchange Commission (the
“Commission”) a Current Report on Form 8-K which includes such audited balance sheet. Each Warrant
entitles its holder to exercise it to purchase one share of Common Stock for $5.00 during the
period commencing on the later of the consummation by the Company of its “Business Combination” or
one year from the effective date (“Effective Date”) of the Registration Statement (as defined in
Section 2.1.1 hereof) and terminating on the four-year anniversary of the Effective Date, or
earlier upon redemption. “Business Combination” shall mean the acquisition by the Company, whether
by merger, capital stock exchange, stock purchase, asset acquisition or other similar business
combination, of one or more domestic and/or foreign operating businesses in the technology,
multimedia and networking sectors (as described more fully in the Registration Statement).
1.1.2 Payment and Delivery. Delivery and payment for the Firm Units shall be made at
1:00 P.M., New York time, on the third business day following the date of this Agreement (or the
fourth business day following the date of this Agreement, if this Agreement is executed after 4:30
p.m., New York time) or at such earlier time as shall be agreed upon by the Representative and the
Company at the offices of the Representative or at such other place as shall be agreed upon by the
Representative and the Company. The hour and date of delivery and
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payment for the Firm Units is called the “Closing Date.” Payment for the Firm Units shall be
made on the Closing Date at the Representative’s election by wire transfer in Federal (same day)
funds or by certified or bank cashier’s check(s) in New York Clearing House funds, payable as
follows: $___ of the proceeds received by the Company for the Firm Units shall be deposited
in the trust account established by the Company as described in the Registration Statement (“Trust
Account”) pursuant to the terms of the Trust Agreement (as defined below in Section 2.22) and the
remaining proceeds shall be paid to the order of the Company upon delivery to the Representative of
certificates (in form and substance satisfactory to the Representative) representing the Firm Units
(or through the facilities of the Depository Trust Company (“DTC”)) for the account of the
Representative. The Firm Units shall be registered in such name or names and in such authorized
denominations as the Representative may request in writing at least two full business days prior to
the Closing Date. The Company will permit the Representative to examine and package the Firm Units
for delivery, at least one full business day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for
all the Firm Units.
1.2 Over-Allotment Option.
1.2.1 Option Units. For the purposes of covering any over-allotments in connection
with the distribution and sale of the Firm Units, the Underwriters are hereby granted, severally
and not jointly, an option to purchase up to an additional aggregate ___units from the
Company (“Over-allotment Option”). Such additional ___units are hereinafter referred to as
“Option Units.” Each Option Unit shall be identical to a Firm Unit. The Firm Units and the Option
Units are hereinafter collectively referred to as the “Units,” and the Units, the shares of Common
Stock and the Warrants included in the Units and the shares of Common Stock issuable upon exercise
of the Warrants are hereinafter referred to collectively as the “Securities.” The purchase price
to be paid for the Option Units will be the same price per Option Unit as the price per Firm Unit
set forth in Section 1.1.1 hereof.
1.2.2 Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1
hereof may be exercised by the Underwriters as to all (at any time) or any part (from time to time)
of the Option Units within 45 days after the Effective Date, subject to Section 1.2.3 hereof. The
Underwriters will not be under any obligation to purchase any Option Units prior to the exercise of
the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving
of oral notice to the Company by the Representative, which must be confirmed in writing by
overnight mail or facsimile transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of and payment for the Option Units (the “Option Closing Date”),
which will not be later than five 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 the
Representative or at such other place as shall be agreed upon by the Company and the
Representative. Upon exercise of the Over-allotment Option, the Company will become obligated to
convey to the Representative, and, subject to the terms and conditions set forth herein, the
Representative will become obligated to purchase, the number of Option Units specified in such
notice.
1.2.3 Termination of Option. In the event that the Representative gives notice in
writing, by overnight mail, e-mail or facsimile transmission, that the Underwriters will not
exercise the Over-allotment Option granted pursuant to Section 1.2.1 hereof, then the
Over-allotment Option shall immediately terminate and the Company and the Underwriters will have no
further obligation with respect to the Over-allotment Option or the Option Units.
1.2.4 Payment and Delivery. Payment for the Option Units shall be made on the Option
Closing Date at the Representative’s election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds, payable to the Trust Account
at the offices of the Representative or at such other place as shall be agreed upon by the
Underwriter and the Company upon delivery to the Representative of certificates representing such
securities (or through the facilities of DTC). The certificates representing the Option Units to
be delivered will be in such denominations and registered in such names as the Representative
requests not less than two full business days prior to the Closing Date or the Option Closing Date,
as the case may be, and will be made available to the Representative for inspection, checking and
packaging at the aforesaid office of the Company’s transfer agent or correspondent not less than
one full business day prior to such Closing Date.
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1.3 Private Placement to the Initial Stockholders. The Company’s stockholder
immediately prior to the Offering (“Initial Stockholder”) purchased from the Company pursuant to
the Placement Unit Purchase Agreement (as defined in Section 2.28 hereof) an aggregate of ___
units identical to the Units (“Placement Units”) at a purchase price of $ per Placement Unit in
a private placement that occurred immediately prior to the entering into of this agreement
(“Private Placement”). The Placement Units, the shares of Common Stock and Warrants included in the
Placement Units (“Placement Warrants”) and the shares of Common Stock issuable upon exercise of the
Placement Warrants are hereinafter referred to collectively as the “Placement Securities.”
1.4 Representative’s Purchase Option.
1.4.1 Purchase Option. The Company hereby agrees to issue and sell to the
Representative (and/or its designees) on the Effective Date an option (“Representative’s Purchase
Option”) for the purchase of up to an aggregate of ___units (“Representative’s Units”) for an
aggregate purchase price of $100. Each of the Representative’s Units is identical to the Firm Units
except that the Warrants included in the Representative’s Units (“Representative’s Warrants”) have
an exercise price of $___(___% of the exercise price of the Warrants included in the Units sold
to the public). The Representative’s Purchase Option shall be exercisable, in whole or in part,
commencing on the later of (i) one year from the Effective Date and (ii) the consummation of a
Business Combination, and expiring on the five-year anniversary of the Effective Date at an
exercise price per Representative’s Unit of $___, which is equal to___% of the initial public
offering price of a Unit. The Representative’s Purchase Option, the Representative’s Units, the
Representative’s Warrants and the shares of Common Stock issuable upon exercise of the
Representative’s Warrants are hereinafter referred to collectively as the “Representative’s
Securities.” The Public Securities and the Representative’s Securities are hereinafter referred to
collectively as the “Securities.”
1.4.2 Payment and Delivery. Delivery and payment for the Representative’s Purchase
Option shall be made on the Closing Date. The Company shall deliver to the Underwriters, upon
payment therefor, certificates for the Representative’s Purchase Option in the name or names and in
such authorized denominations as the Representative may request.
2. Representations and Warranties of the Company. The Company represents and warrants to
the Underwriters as follows:
2.1 Filing of the Registration Statement.
2.1.1 Pursuant to the Securities Act. The Company has filed with the Commission on
Form S-1 (File No. 333-128058) a registration statement, including a prospectus, relating to the
Offering, which registration statement has been prepared in conformity with the requirements of the
Securities Act, and the rules and regulations (“Regulations”) of the Commission under the
Securities Act. The registration statement as amended at the time it becomes effective, including
the information (if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the “Securities
Act”), is hereinafter referred to as the “Registration Statement”; the prospectus in the form first
filed with the Commission pursuant to and within the time limits described in Rule 424(b) is
hereinafter referred to as the “Prospectus.” If the Company has filed an abbreviated registration
statement to register additional Firm Units pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. For purposes of this Agreement,
“Time of Sale” means [ ] p.m., New York City time, on the date of this Agreement. Prior to the
Time of Sale, the Company prepared a preliminary prospectus, dated January ___, 2006, for
distribution by the Underwriters (the “Preliminary Prospectus”). If, subsequent to the date of
this Agreement, the Company or the Representative has determined that the Preliminary Prospectus
included an untrue statement of a material fact or omitted a statement of material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading and have agreed to provide an opportunity to purchasers of the Units to terminate their
old purchase contracts and enter into new purchase contracts, then the Preliminary Prospectus will
be deemed to include any additional information available to purchasers at the time of entry into
the first such new purchase contract.
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
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(“Exchange Act”), of the Units, the Common Stock and the Warrants. The registration of the
Units, Common Stock and Warrants under the Exchange Act is effective as of 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 or threatened to issue any order
preventing or suspending the effectiveness of the Registration Statement or the use of the
Preliminary Prospectus or the Prospectus, or has instituted or, to the best of the Company’s
knowledge, threatened to institute any proceedings with respect to such an order.
2.3 Disclosures in the Registration Statement.
2.3.1 10b-5 Representation. The Registration Statement has been declared effective by
the Commission on the date hereof. At the time the Registration Statement became effective and at
the Closing Date and the Option Closing Date, if any, the Registration Statement contains or will
contain, as applicable, and the Prospectus when first filed with the Commission and at the Closing
Date and the Option Closing Date, if any, will contain, all material statements that are required
to be stated therein in accordance with the Securities Act and the Regulations, and will in all
material respects conform or will conform, as applicable, to the requirements of the Securities Act
and the Regulations; neither the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, on such dates, contains or will contain any untrue statement of a material fact
or omits or will 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 Preliminary Prospectus, when first filed with the Commission, at the Time of Sale, and at the
Closing Date and the Option Closing Date, if any, complied or will comply, as applicable, in all
material respects with the applicable provisions of the Securities Act and the Regulations and did
not and will not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Nothing has come to the attention of the
Company that has caused the Company to believe that the market-related data included in the
Preliminary Prospectus, the Registration Statement and the Prospectus is not based on or derived
from sources that are reliable and accurate (in accordance with the methodologies used to derive
such market-related data set forth in the underlying source material) in all material respects.
2.3.2 Disclosure of Agreements. The agreements and documents described in the
Preliminary Prospectus, the Registration Statement and the Prospectus conform to the descriptions
thereof contained therein and there are no agreements or other documents required to be described
in the Preliminary Prospectus, the Registration Statement or the Prospectus or to be filed with the
Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a
party or by which its property or business is or may be bound or affected and (i) that is referred
to in the Preliminary Prospectus or the Prospectus, or (ii) is material to the Company’s business,
has been duly and validly executed by the Company, is in full force and effect and is enforceable
against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with
its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any
indemnification or contribution provision may be limited under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and none of such agreements or instruments has been assigned by
the Company, and neither the Company nor, to the best of the Company’s knowledge, any other party
is in breach or 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 breach
or 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
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common control with the Company since the formation of the Company, except as disclosed in the
Preliminary Prospectus, the Registration Statement and the Prospectus.
2.3.4 American Stock Exchange Listing. The Units, the Warrants and the Common Stock
have been duly listed, and admitted and authorized for trading, subject only to official notice of
issuance, on the American Stock Exchange, and the Company knows of no reason or set of facts which
is likely to adversely affect such approval.
2.4 Changes After Dates in the Registration Statement.
2.4.1 No Material Adverse Change. Since the respective dates as of which information
is given in the Preliminary Prospectus, 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 member of the Company’s management has resigned from any position with the
Company.
2.4.2 Recent Securities Transactions. 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 therein, the Company has not (i) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or
paid any dividend or made any other distribution on or in respect to its equity securities.
2.5 Independent Accountants. BDO ▇▇▇▇▇▇▇, LLP (“BDO”), whose report is filed with the
Commission as part of the Registration Statement, are independent accountants as required by the
Securities Act and the Regulations. BDO 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
included in the Preliminary Prospectus, the Registration Statement and the Prospectus, fairly
present the financial position, the results of operations and the cash flows of the Company at the
dates and for the periods to which they apply; and such financial statements have been prepared in
conformity with United States generally accepted accounting principles (“GAAP”), consistently
applied throughout the periods involved. The Preliminary Prospectus, the Registration Statement
and the Prospectus disclose all material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), and other relationships of the Company with unconsolidated
entities or other persons that may have a material current or future effect on the Company’s
financial condition, changes in financial condition, results of operations, liquidity, capital
expenditures, capital resources, or significant components of revenues or expenses.
2.7 Authorized Capital; Options; Etc. The Company had at the date or dates indicated
in the Preliminary Prospectus, the Registration Statement and the Prospectus duly authorized,
issued and outstanding capital stock as set forth in the Preliminary Prospectus, the Registration
Statement and the Prospectus. Based on the assumptions stated in the Preliminary Prospectus, 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
Preliminary Prospectus, 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 Common Stock or any security convertible into shares
of Common Stock, or any contracts or commitments to issue or sell shares of Common Stock or any
such options, warrants, rights or convertible securities.
2.8 Valid Issuance of Securities; Etc.
2.8.1 Outstanding Securities. All issued and outstanding securities of the Company
(including, without limitation, the Placement Securities) have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with
respect thereto, and are not subject to personal liability by reason of being such holders; and
none of such securities were issued in violation of the preemptive
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rights of any holders of any security of the Company or similar contractual rights granted by
the Company. The authorized Common Stock conforms to all statements relating thereto contained in
the Preliminary Prospectus, the Registration Statement and the Prospectus. The offers and sales of
the outstanding Common Stock were at all relevant times either registered under the Securities Act
and the applicable state securities or Blue Sky laws or, based in part on the representations and
warranties of the purchasers of such shares of Common Stock, exempt from such registration
requirements.
2.8.2 Securities Sold Pursuant to this Agreement. The Securities have been duly
authorized and, when issued and paid for, will be validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal liability by reason of being such
holders; the Securities are not and will not be subject to the preemptive rights of any holders of
any security of the Company or similar contractual rights granted by the Company; and all corporate
action required to be taken for the authorization, issuance and sale of the Securities has been
duly and validly taken. The Securities conform in all material respects to all statements with
respect thereto contained in the Preliminary Prospectus, the Registration Statement and the
Prospectus. When issued, the Representative’s Purchase Option, the Representative’s Warrants and
the Warrants will constitute valid and binding obligations of the Company to issue and sell, upon
exercise thereof and payment of the exercise price therefor, the number and type of securities of
the Company called for thereby in accordance with the terms thereof and such Representative’s
Purchase Option, the Representative’s Warrants and the Warrants are enforceable against the Company
in accordance with their respective terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (ii)
as enforceability of any indemnification or contribution provision may be limited under 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 equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
2.8.3 Placement Warrants. The Placement Warrants constitute valid and binding
obligations of the Company to issue and sell, upon exercise thereof and payment of the respective
exercise prices therefor, the number and type of securities of the Company called for thereby in
accordance with the terms thereof, and such Placement Warrants are enforceable against the Company
in accordance with their respective terms, except: (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii)
as enforceability of any indemnification or contribution provision may be limited under federal and
state securities laws; and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought. The shares of Common Stock issuable upon
exercise of the Placement Warrants have been reserved for issuance upon the exercise of the
Placement Warrants and, when issued in accordance with the terms of the Placement Warrants, will be
duly and validly authorized, validly issued, fully paid and non-assessable, and the holders thereof
are not and will not be subject to personal liability by reason of being such holders.
2.9 Registration Rights of Third Parties. Except as set forth in the Preliminary
Prospectus and the Prospectus, no holders of any securities of the Company or any rights
exercisable for or convertible or exchangeable into securities of the Company have the right to
require the Company to register any such securities of the Company under the Securities Act or to
include any such securities in a registration statement to be filed by the Company.
2.10 Validity and Binding Effect of Agreements. This Agreement, the Warrant Agreement
(as defined in Section 2.21 hereof), the Trust Agreement (as defined in Section 2.22 hereof), those
certain letter agreements (each substantially in the form filed as Exhibits [10.2 and 10.8] to the
Registration Statement), pursuant to which the Initial Stockholder and the officers, directors and
special advisors of the Company agree to certain matters, including but not limited to, certain
matters described as being agreed to by them under the “Proposed Business” section of the
Prospectus (“Insider Letters”), the Placement Unit Purchase Agreement (as defined in Section 2.28
hereof) and the Lock-up Agreement (substantially in the form filed as Exhibit 10.3 to the
Registration Statement), whereby Common Stock owned by Acquicor Management LLC immediately before
the Offering including the Common Stock include in the Placement Units will be locked-up for up to
3 years after the closing of the offering (the “Lock-up Agreement”) have been duly and validly
authorized by the Company and 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
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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 equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
2.11 No Conflicts, Etc. The execution, delivery, and performance by the Company of
this Agreement, the Warrant Agreement, the Trust Agreement, the Insider Letters, the Placement Unit
Purchase Agreement and the Lock-up Agreement, the consummation by the Company of the transactions
herein and therein contemplated and the compliance by the Company with the terms hereof and thereof
do not and will not, with or without the giving of notice or the lapse of time or both (i) result
in a breach of, or conflict with any of the terms and provisions of, or constitute a default under,
or result in the creation, modification, termination or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or
instrument to which the Company is a party except pursuant to the Trust Agreement referred to in
Section 2.22 hereof; (ii) result in any violation of the provisions of the Amended and Restated
Certificate of Incorporation or the Bylaws of the Company; or (iii) violate any existing applicable
law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or
foreign, having jurisdiction over the Company or any of its properties or business.
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
Amended and Restated Certificate of Incorporation or Bylaws or in violation of any material
franchise, license, permit, applicable law, rule, regulation, judgment or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of
its properties or businesses.
2.13 Corporate Power; Licenses; Ownership.
2.13.1 Conduct of Business. The Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies that it needs as of the date
hereof to conduct its business as described in the Preliminary Prospectus, the Registration
Statement and the Prospectus. The disclosures in the Preliminary Prospectus, the Prospectus and
the Registration Statement concerning the effects of federal, state and local regulation on this
offering and the Company’s business purpose as currently contemplated are correct in all material
respects and do not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not
misleading.
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, the Warrant
Agreement, the Trust Agreement, the Insider Letters, the Placement Unit Purchase Agreement and the
Lock-up Agreement and as contemplated by the Prospectus, except with respect to applicable federal
and state securities laws.
2.13.3 Ownership. Except as set forth in the Preliminary Prospectus, the Registration
Statement and the Prospectus, the Company owns or has valid leasehold interests in all material
properties and assets required for the operation of its business as now conducted or as presently
proposed to be conducted, including those described in the Preliminary Prospectus, the Registration
Statement and the Prospectus as being owned by it; and the Company has good and marketable title to
all properties and assets owned by it material to its business in each case free from liens,
encumbrances and defects that would materially affect the value thereof or materially interfere
with the use made or to be made thereof by the Company. All real property leases to which the
Company is a party are valid, subsisting and, to the knowledge of the Company, enforceable by the
Company, in each case with no exceptions that would materially interfere with the use made or to be
made thereof by the Company and the Company enjoys peaceful and undisturbed possession under all
such leases to which it is a party as lessee. The
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Company owns or possesses, or can acquire on a timely basis and on commercially reasonable
terms, all material trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property necessary for the Company’s
business as currently proposed to be conducted.
2.14 D&O Questionnaires. To the best of the Company’s knowledge, all information
contained in the director and officer questionnaires and NASD supplemental questionnaires
(“Questionnaires”) completed by the Initial Stockholder and the officers, directors and special
advisors of the Company and provided to the Representative as an exhibit to his or her Insider
Letter (as defined in Section 2.10) is true and correct and the Company has not become aware of any
information which would cause the information disclosed in the questionnaires completed by the
Initial Stockholder and the officers, directors and special advisors of the Company to become
inaccurate and incorrect.
2.15 Litigation; Governmental Proceedings. There is no action, suit, proceeding,
inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the best
of the Company’s knowledge, threatened against, or involving the Company, which has not been
disclosed in the Preliminary Prospectus, the Prospectus or the Registration Statement, except for
actions, suits, proceedings, inquiries, arbitrations, investigations, litigation or government
proceedings pending against the Initial Stockholder, the officers, directors or special advisors of
the Company that would not individually or in the aggregate have a material adverse effect on the
Company or the Offering.
2.16 Good Standing. The Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of its state of incorporation, and is duly
qualified to do business and is in good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of business requires such qualification,
except where the failure to qualify would not have a material adverse effect on the Company.
2.17 ▇▇▇▇▇▇▇▇-▇▇▇▇▇. There is and has been no failure on the part of the Company or
any of the Company’s directors or officers, in their capacities as such, to comply with (as and
when applicable), and immediately following the effectiveness of the Registration Statement the
Company will be in compliance with, Sections 301, 402, 802 and 1102 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002, as amended, and the rules and regulations promulgated by the Commission and the American
Stock Exchange thereunder (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), and Part 8 of the American Stock Exchange’s
“AMEX Company Guide,” as amended. Further, there is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in their capacities as such, to comply with
(as and when applicable), and immediately following the effectiveness of the Registration Statement
the Company will be in compliance with, all other applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
and the American Stock Exchange corporate governance requirements set forth in the AMEX Company
Guide, as amended.
2.18 Transactions Affecting Disclosure to NASD.
2.18.1 Finder’s Fees. Except as described in the Preliminary Prospectus, 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, the Initial Stockholder or any officer, director and special advisor of the Company with
respect to the sale of the Securities hereunder or any other arrangements, agreements or
understandings of the Company or, to the best of the Company’s knowledge, the Initial Stockholder
or any officer, director and special advisor of the Company that may affect the Underwriters’
compensation, as determined by the National Association of Securities Dealers, Inc. (“NASD”).
2.18.2 Payments Within Twelve Months. The Company has not made any direct or indirect
payments (in cash, securities or otherwise) (i) to any person, as a finder’s fee, consulting fee or
otherwise, in consideration of such person raising capital for the Company or introducing to the
Company persons who raised or provided capital to the Company, (ii) to any NASD member or (iii) to
any person or entity that has any direct or indirect affiliation or association with any NASD
member, within the twelve months prior to the Effective Date.
2.18.3 Use of Proceeds. None of the net proceeds of the Offering or the Private
Placement will be paid by the Company to any participating NASD member or its affiliates, except as
specifically authorized herein
8
[and in the Placement Unit Purchase Agreement] and except as may be paid in connection with a
Business Combination as contemplated by the Prospectus.
2.18.4 Insiders’ NASD Affiliation. Based on the Questionnaires distributed to such
persons, except as set forth on Schedule 2.18.4, no officer, director or any beneficial owner of
the Company’s unregistered securities has any direct or indirect affiliation or association with
any NASD member. The Company will advise the Representative and its counsel if it learns that any
officer or director or owner of at least 5% of the Company’s outstanding Common Shares is or
becomes an affiliate or associated person of an NASD member participating in the Offering.
2.19 Foreign Corrupt Practices Act. Neither the Company nor any of the Initial
Stockholder or any officer, director or special advisor 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 Preliminary Prospectus, the Registration Statement and the
Prospectus or (iii) if not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company. The Company’s internal accounting controls and procedures
are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as
amended.
2.20 Officer’s Certificate. Any certificate signed by any duly authorized officer of
the Company and delivered to the Representative or to the Representative’s counsel shall be deemed
a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.21 Warrant Agreement. The Company has entered into a warrant agreement with respect
to the Warrants, the Representative’s Warrants and the Placement Warrants with Continental Stock
Transfer & Trust Company substantially in the form filed as Exhibit 4.4 to the Registration
Statement (“Warrant Agreement”).
2.22 Investment Management Trust Agreement. The Company has entered into the Trust
Agreement with respect to certain proceeds of the Offering substantially in the form filed as
Exhibit 10.4 to the Registration Statement (“Trust Agreement”).
2.23 Covenants Not to Compete. No Initial Stockholder, employee, officer, director or
special advisor of the Company is subject to any noncompetition agreement or non-solicitation
agreement with any employer or prior employer which could materially affect his ability to be an
Initial Stockholder, employee, officer, director and/or special advisor of the Company.
2.24 Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Units contemplated hereunder and the application of the net proceeds from
such sale as described in the Registration Statement and the Prospectus, will not be an “investment
company” within the meaning of such term under the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission thereunder.
2.25 Rule 419 Under the Act. Upon delivery and payment for the Firm Units on the
Closing Date, the Company will not be subject to Rule 419 under the Securities Act and none of the
Company’s outstanding securities will be deemed to be a “▇▇▇▇▇ stock” as defined in rule 3a-51-1
under the Exchange Act.
2.26 Subsidiaries. The Company does not own an interest in any corporation,
partnership, limited liability company, joint venture, trust or other business entity.
9
2.27 Related Party Transactions. There are no business relationships or related party
transactions involving the Company or any other person required to be described in the Preliminary
Prospectus or the Prospectus that have not been described as required.
2.28 Placement Unit Purchase Agreement. The Initial Stockholder has executed and
delivered an agreement, annexed as Exhibit ___to the Registration Statement (“Placement Unit
Purchase Agreement”), pursuant to which the Initial Stockholder has, among other things, purchased
an aggregate of ___Placement Units in the Private Placement. Pursuant to the Placement Unit
Purchase Agreement, (i) $___of the proceeds from the sale of the Placement Units will be
deposited by the Company in the Trust Fund in accordance with the terms of the Trust Agreement
prior to the Closing Date, and (ii) the purchasers of the Placement Units have waived any and all
rights and claims they may have to any proceeds, and any interest thereon, held in the Trust Fund
in respect of the shares of Common Stock included in such Placement Units in the event that a
Business Combination is not consummated and the Trust Fund is liquidated in accordance with the
terms of the Trust Agreement.
3. Covenants of the Company. The Company covenants and agrees as follows:
3.1 Amendments to the Registration Statement. The Company will deliver to the
Representative, prior to filing, any amendment or supplement to the Registration Statement or the
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 Securities Act, the Company will use all reasonable efforts to comply with all requirements
imposed upon it by the Securities 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 Securities in accordance with the provisions hereof and
the Prospectus. If at any time when a Prospectus relating to the Securities is required to be
delivered under the Securities Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Representative, 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 Securities 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 Securities 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. Until the earlier of five years from the Effective
Date or the date that the Company is liquidated, the Company (i) will use its best efforts to
maintain the registration of the Units, Common Stock and Warrants under the provisions of the
Exchange Act and (ii) will not deregister the Units under the Exchange Act without the prior
written consent of the Representative, which consent shall not be unreasonably withheld;
provided, however, that the Company may terminate its Exchange Act registration
without the prior written consent of the Representative in the event that all of the outstanding
voting stock of the Company is acquired by a third party.
3.2.4 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company (i) has taken all necessary actions to ensure
that it is in compliance with all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are in effect and with
which the Company is required to comply, (ii) will take all necessary actions to ensure that, upon
and at all times after the effectiveness of the Registration Statement, it will be in compliance
with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the
effectiveness of such provisions and (iii) will take all necessary actions to ensure that, upon and
at all times after the effectiveness of the Registration Statement, it will be in compliance with
the requirements of the American Stock Exchange’s “AMEX Company Guide,” as amended.
10
3.3 American Stock Exchange Listing. The Company will use its best efforts to effect
and maintain the listing of the Securities on the American Stock Exchange.
3.4 Delivery to the Representative of Prospectuses. The Company will deliver to the
Representative, without charge, from time to time during the period when the Prospectus (or in lieu
thereof the notice referred to under Rule 173(a) under the Act) is required to be delivered under
the Securities Act or the Exchange Act, such number of copies of each Preliminary Prospectus and
the Prospectus as the Representative may reasonably request and, as soon as the Registration
Statement or any amendment or supplement thereto becomes effective, deliver to the Representative
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 original executed consents all of certified experts.
3.5 Effectiveness and Events Requiring Notice to the Representative.
3.5.1 The Company will use its best efforts to cause the Registration Statement to remain
effective until distribution of the Securities is complete 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 the Prospectus, (v) of the receipt of
any comments or request for any additional information from the Commission, and (vi) of the
happening of any event during the period described in Section 3.4 hereof that, in the judgment of
the Company, 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 during any such time, the Company will make every reasonable
effort to obtain promptly the lifting of such order.
3.6 Compensation. Except for the repayment of a loan in the original principal amount
of $275,000, plus interest made by Acquicor Management LLC, the Company shall not pay the Initial
Stockholder or any officer, director or special advisor of the Company or any of their affiliates
any fees or compensation from the Company, for services rendered to the Company prior to, or in
connection with, the consummation of a Business Combination; provided that the Initial Stockholder,
the officers, directors and special advisors of the Company and their affiliates shall be entitled
to reimbursement from the Company for their out-of-pocket expenses incurred in connection with
seeking and consummating a Business Combination.
3.7 [Reserved.]
3.8 Reports to the Representative.
3.8.1 Periodic Reports, Etc. For a period of five years from the Effective Date or
earlier if the Company terminates its Exchange Act registration in accordance with Section 3.2.3
hereof, the Company will furnish to the Representative and its counsel copies of such financial
statements and other periodic and special reports as the Company from time to time furnishes
generally to holders of any class of its securities, and promptly furnish to the Representative (i)
a copy of each periodic report the Company shall be required to file with the Commission, (ii) a
copy of each Current Report on Form 8-K and Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared
by the Company, (iii) a copy of each registration statement filed by the Company with the
Commission under the Securities Act and (iv) such additional documents and information with respect
to the Company and its subsidiaries as the Representative may from time to time reasonably request.
3.9 Payment of Expenses. 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 preparation (exclusive of the fees and expenses of counsel to the
Representative), printing, filing and mailing (including the payment of
11
postage with respect to such mailing) of copies of the Registration Statement, the Preliminary
Prospectus and the Prospectus and the printing and mailing of this Agreement and related documents,
including the cost of all copies thereof and any amendments thereof or supplements thereto supplied
to the Representative in quantities as may be reasonably required by the Representative, (ii) the
printing, engraving, issuance and delivery of the Units, the shares of Common Stock and the
Warrants included in the Units, including any transfer or other taxes payable thereon, (iii) the
qualification of the Securities under state or foreign securities or Blue Sky laws, including the
costs of preparing, printing and mailing the Preliminary Blue Sky Memorandum, and all amendments
and supplements thereto, and the Final Blue Sky Memorandum, and the reasonable fees and
disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters (“▇▇▇▇▇▇▇”) related thereto;
provided that the Company shall not be required to reimburse the Representative or ▇▇▇▇▇▇▇ for any
amounts under this clause (iii) in excess of $15,000 unless ▇▇▇▇▇▇▇ or the Representative have
advanced any filing fees with respect to the qualification of the Securities under state or foreign
securities or Blue Sky laws in which event the limitations on reimbursement under this clause (iii)
shall not apply to such filing fees, (iv) filing fees, costs and expenses (excluding fees and
disbursements for the Representative’s counsel) incurred in registering the Offering with the NASD
and the Commission and in listing the Securities on the American Stock Exchange, (v) fees and
disbursements of the Transfer Agent, (vi) the Company’s expenses associated with “due diligence”
and “road show” meetings arranged by the Representative, and (vii) all other costs and expenses
customarily borne by an issuer incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section 3.9. The Representative may deduct from
the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing
Date, if any, the expenses set forth in this Agreement to be paid by the Company to the
Representative and others.
3.10 Application of Net Proceeds. The Company will apply the net proceeds from the
Offering and the Private Placement received by it in a manner consistent with the application
described under the caption “Use Of Proceeds” in the Preliminary Prospectus.
3.11 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 sixteenth 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 Securities Act or the Regulations, but which shall satisfy the provisions of Rule
158(a) under Section 11(a) of the Securities Act) covering a period of at least twelve consecutive
months beginning after the Effective Date.
3.12 Notice to NASD. In the event any person or entity (but excluding attorneys,
accountants, engineers, environmental or labor consultants, investigatory firms, technology
consultants and specialists and similar service providers that are not affiliated or associated
with the NASD and are not brokers or finders), is engaged, in writing, to assist the Company in
finding or evaluating a Target Business (as defined in Section 6.2 hereof), the Company will
provide the following to the NASD and the Representative prior to consummation of the Business
Combination: (i) copies of agreements governing said services (with the names of the parties
appropriately redacted to account for privilege or confidentiality concerns), and (ii) a
justification (to the extent available) as to why the person or entity providing the merger and
acquisition services should not be considered an “underwriter or related person” with respect to
the Company’s initial public offering, as such term is defined in Rule 2710(a)(6) of the NASD
Conduct Rules. The Company also agrees that proper disclosure of such arrangement or potential
arrangement will be made in the proxy statement which the Company will file for purposes of
soliciting stockholder approval for the Business Combination.
3.13 Stabilization. Neither the Company, nor, to its knowledge, any of its employees,
directors or stockholders (without the consent of the Representative) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that might reasonably be
expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Units.
3.14 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 generally
accepted accounting principles and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization, and (iv)
12
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. For a period of five years from the Effective Date or until such
earlier time upon which the Company is required to be liquidated, the Company shall, subject to the
approval of its Shareholders, retain BDO or other independent registered public accountants
reasonably acceptable to the Representative.
3.16 Form 8-K. The Company shall, on the date hereof, retain its independent public
accountants to audit the financial statements of the Company as of the Closing Date (“Audited
Financial Statements”) reflecting the receipt by the Company of the proceeds of the initial public
offering. As soon as the Audited Financial Statements become available, the Company shall promptly
file a Current Report on Form 8-K with the Commission, which Report shall contain the Company’s
Audited Financial Statements.
3.17 NASD. During the period of the distribution of the Securities, the Company shall
advise the NASD if it is aware that any 5% or greater stockholder of the Company becomes an
affiliate or associated person of an NASD member participating in the distribution of the Company’s
Securities.
3.18 Corporate Proceedings. All corporate proceedings and other legal matters
necessary to carry out the provisions of this Agreement and the transactions contemplated hereby
shall have been done to the reasonable satisfaction of counsel for the Underwriter.
3.19 Investment Company. The Company shall cause the proceeds of the Offering to be
held in the Trust Account to be invested only in (i) money market funds meeting certain conditions
under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended; or (ii)
securities issued or guaranteed by the United States government, as set forth in the Trust
Agreement and disclosed in the Preliminary Prospectus, the Registration Statement and the
Prospectus. The Company will otherwise conduct its business in a manner so that it will not become
subject to the Investment Company Act. Furthermore, once the Company consummates a Business
Combination, it will be engaged in a business other than that of investing, reinvesting, owning,
holding or trading securities.
3.20 Colorado Trust Filing. In the event the Securities are registered in the State
of Colorado, the Company will cause a Colorado Form ES to be filed with the Commissioner of the
State of Colorado no less than 10 days prior to the distribution of the Trust Account in connection
with a Business Combination and will do all things necessary to comply with Section ▇▇-▇▇-▇▇▇ and
Rule 51-3.4 of the Colorado Securities Act.
3.21 Private Placement Proceeds. Immediately upon establishment of the Trust Fund and
prior to the Closing, the Company shall deposit $___of the proceeds from the Private
Placement in the Trust Fund and shall provide TEP with evidence of the same.
3.22 Deferred Compensation. Upon the consummation of the initial Business
Combination, the Company will pay to the Representative, on behalf of the Underwriters, a deferred
discount in an amount equal to 2% of the gross proceeds (before giving effect to any discounts or
commissions) received by the Company from the sale of the Units (the “Deferred Discount”). Payment
of the Deferred Discount will be made out of the proceeds of this Offering held in the Trust
Account. The Underwriters shall have no claim to payment of any interest earned on the portion of
the proceeds held in the Trust Account representing the Deferred Discount. If the Company fails to
consummate its initial Business Combination within the required time period set forth in the
Registration Statement, the Deferred Discount will not be paid to the Representative and will,
instead, be included in the liquidation distribution of the proceeds held in the Trust Account made
to the holders of the IPO Shares (as defined in Section 6.7 hereof). In connection with any such
liquidation distribution, the Underwriters will forfeit any rights or claims to the Deferred
Discount, including any accrued interest thereon.
3.23 Expenses Related to Business Combination. In the event the Representative is
engaged by the Company to assist the Company in trying to obtain stockholder approval of a proposed
Business Combination, the Company agrees to reimburse the Representative for all reasonable
out-of-pocket expenses, including, but not limited to, “road show” and due diligence expenses.
13
4. Conditions of Underwriters’ Obligations. The obligations of the Representative to
purchase and pay for the Units on behalf of the Underwriters, 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. If any of
the conditions provided for in this Section 4 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representative by notifying the Company of such termination in writing at or prior to the
Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the
Underwriters shall not be under any obligation to each other (except to the extent provided in
Sections 5 and 8 hereof).
4.1 Regulatory Matters.
4.1.1 Effectiveness of the Registration Statement. The Registration Statement shall
have become effective not later than 5:00 P.M., New York time, on the date of this Agreement or
such later date and time as shall be consented to in writing by the Underwriter, 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 the purpose shall have been
instituted or shall be pending or contemplated by the Commission and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of ▇▇▇▇▇▇▇.
4.1.2 NASD Clearance. By the Effective Date, the Representative shall have received
clearance from the NASD as to the amount of compensation allowable or payable to the Underwriters
as described in the Registration Statement.
4.2 Company Counsel Matters.
4.2.1 Closing Date Opinion of Counsel. On each of the Closing Date and the Option
Closing Date, if any, the Underwriters shall have received the favorable opinion of ▇▇▇▇▇▇ Godward
LLP , counsel to the Company, dated as of the Closing Date or the Option Closing Date, as
the case may be, addressed to the Representative and in the form attached hereto as Exhibit A.
4.2.2 Reliance. In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws other than the laws of the United States and jurisdictions in
which they are admitted, to the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory
to ▇▇▇▇▇▇▇) of other counsel reasonably acceptable to ▇▇▇▇▇▇▇, 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 jurisdictions 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 ▇▇▇▇▇▇▇ if requested. The
opinion of counsel for the Company and any opinion relied upon by such counsel for the Company
shall include a statement to the effect that it may be relied upon by counsel for the
Representative 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, the Representative shall have received a letter,
addressed to the Representative and in form and substance satisfactory in all respects (including
the non-material nature of the changes or decreases, if any, referred to in clause (iii) below) to
the Representative and to ▇▇▇▇▇▇▇ from BDO 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 accountants with respect to the Company within the
meaning of the Securities Act and the applicable Regulations and that they have not, during the
periods
14
covered by the financial statements included in the Preliminary Prospectus, the Registration
Statement and the Prospectus, provided to the Company any non-audit services, as such term is used
in Section 10A(g) of the Exchange Act;
(ii) Stating that in their opinion the financial statements of the Company included in the
Preliminary Prospectus, the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Securities 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 stockholders and board of directors and the various committees of the board of
directors, consultations with officers and other employees of the Company responsible for financial
and accounting matters and other specified procedures and inquiries, nothing has come to their
attention which would lead them to believe that (a) the unaudited financial statements of the
Company included in Preliminary Prospectus, the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable accounting requirements of the
Securities Act and the Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with that of the audited
financial statements of the Company included in the Registration Statement, (b) at a date not later
than five days prior to the Effective Date, Closing Date or Option Closing Date, as the case may
be, there was any change in the capital stock or long-term debt of the Company, or any decrease in
the stockholders’ equity of the Company as compared with amounts shown in the November 30, 2005
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 November 30, 2005 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 of Common Stock, 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;
(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 break-down of commercial paper and notes payable to
banks);
(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 Preliminary Prospectus, the Registration Statement and the Prospectus in each case to
the extent that such amounts, numbers, percentages, statements and information may be derived from
the general accounting records, including work sheets, of the Company and excluding any questions
requiring an interpretation by legal counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures (which procedures do not constitute
an examination in accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating that they have not during the immediately preceding five year period brought to
the attention of the Company’s management any reportable condition related to internal structure,
design or operation as defined in the Statement on Auditing Standards No. 60 “Communication of
Internal Control Structure Related Matters Noted in an Audit,” in the Company’s internal controls;
and
(vii) Statements as to such other matters incident to the transaction contemplated hereby as
the Representative may reasonably request.
4.4 Officers’ Certificates.
4.4.1 Officer’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 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 (i) the Company has performed all covenants or agreements
and satisfied 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,
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as the case may be, (ii) the conditions set forth in Section 4.5 hereof have been satisfied as of
the Closing Date, or the Option Closing Date, as the case may be, and (iii) as of Closing Date and
the Option Closing Date, as the case may be, the representations and warranties of the Company set
forth in Section 2 hereof are true and correct. Further, at each of the Closing Date and the
Option Closing Date, if any, the Company shall have furnished to the Representative such further
certificates and documents confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representative may reasonably have requested.
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 Closing Date,
as the case may be, respectively, certifying (i) that the Bylaws and Amended and Restated
Certificate of Incorporation of the Company are true and complete, have not been modified and are
in full force and effect, (ii) that the resolutions relating to the public offering contemplated by
this Agreement are in full force and effect and have not been modified, (iii) all written
correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency
of the officers of the Company. The documents referred to in such certificate shall be attached to
such certificate.
4.5 No Material Changes. Prior to 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 Preliminary Prospectus, the Registration Statement and the Prospectus, (ii) no action
suit or proceeding, at law or in equity, shall have been pending or threatened against the Company,
the Initial Stockholder or any officer, director or special advisor of the Company 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 Preliminary Prospectus,
the Registration Statement and the Prospectus, (iii) no stop order shall have been issued under the
Securities Act and no proceedings therefor shall have been initiated or threatened by the
Commission, and (iv) the Preliminary Prospectus, 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 Securities Act and the Regulations and shall conform in
all material respects to the requirements of the Securities Act and the Regulations, and neither
the Preliminary Prospectus, 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. On the Effective Date, the Company shall have delivered
to the Representative executed copies of the Lock-up Agreement, the Trust Agreement, the Warrant
Agreement, the Placement Unit Purchase Agreement and the Insider Letters.
4.7 Opinion of Counsel for the Representative. All proceedings taken in connection
with the authorization, issuance or sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriter and to ▇▇▇▇▇▇▇ and the
Representative shall have received from ▇▇▇▇▇▇▇ a favorable opinion, dated the Closing Date and the
Option Closing Date, if any, with respect to such of these proceedings as the Representative may
reasonably require. On or prior to the Effective Date, the Closing Date and the Option Closing
Date, as the case may be, ▇▇▇▇▇▇▇ shall have been furnished such documents, certificates and
opinions as they may reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 4.7, or in order to evidence the accuracy, completeness or
satisfaction of any of the representations, warranties or conditions herein contained.
4.8 American Stock Exchange Listing. The Firm Units and Option Units, if any, have
been duly listed, subject to notice of issuance, on the American Stock Exchange.
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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 the Underwriters, and each dealer selected by the Underwriters 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 either of the
Underwriters (“controlling person”) within the meaning of Section 15 of the Securities 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 the Underwriters and the Company or between
the Underwriters and any third party or otherwise) to which they or any of them may become subject
under the Securities 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) the Preliminary Prospectus, the Registration
Statement or the Prospectus and any amendments or supplements thereto; (ii) any post effective
amendment or amendments or any new registration statement and prospectus in which is included
securities of the Company issued or issuable upon exercise of the Underwriter’s Purchase Options;
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 Securities 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 the Underwriters by or
on behalf of the Underwriters expressly for use in the Preliminary Prospectus, the Registration
Statement and the 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
(i) such failure to deliver the Prospectus was a result of non-compliance by the Company with its
obligations under Section 5.1 hereof or (ii) such loss, liability, claim, damage or expense would
have arisen even if a copy of the Prospectus had been so delivered. The Company agrees promptly to
notify the Representative as soon as practicable of the commencement of any litigation or
proceedings against the Company or any of its officers, directors or controlling persons in
connection with the issue and sale of the Securities or in connection with the Preliminary
Prospectus, the Registration Statement and the Prospectus and any amendments or supplements
thereto.
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 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
Selected Dealer, as the case may be) and payment of actual expenses; provided, that the
failure to give such notice shall not relieve the Company from any liability it may have under
Sections 5.1.1 or 5.1.2 hereof, except to the extent the Company has been materially prejudiced
(through forfeiture of substantive rights or defenses) by such failure and; provided
further, that the failure to notify the Company shall not relieve the Company from any
liability that it may have to an indemnified party as determined under Sections 5.1.1 or 5.1.2
hereof. Such Underwriter, 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, 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
take 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
17
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 such Underwriter, Selected Dealer and/or controlling person shall be borne by
the Company. Notwithstanding anything to the contrary contained herein, if such 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 Securities 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 and the Prospectus or any amendment or
supplement thereto or in any application, in reliance upon, and in strict conformity with, written
information furnished to the Company with respect to such Underwriter by or on behalf of such
Underwriter expressly for use in such Preliminary Prospectus, the Registration Statement and the
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 and the Prospectus or any amendment or supplement thereto or
any application, and in respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the several Underwriters by the
provisions of Section 5.1.2.
5.3 Contribution.
5.3.1 Contribution Rights. In order to provide for just and equitable contribution
under the Securities 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 Securities Act, the Exchange Act or otherwise may be required
on the part of any such person in circumstances for which indemnification is provided under this
Section 5, then, and in each such case, the Company and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to the initial offering
price appearing thereon and the Company is responsible for the balance; provided, that no person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
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 5, 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
Securities 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 party”), notify the contributing party of the commencement thereof, but the omission
to so notify the contributing party will not relieve it from any liability which it may have to any
other party other than for contribution hereunder. In case any such action, suit or proceeding is
brought against any party, and such party notifies a contributing party or its 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
18
party seeking contribution without the written consent of such contributing party. The
contribution provisions contained in this Section 5 are intended to supersede, to the extent
permitted by law, any right to contribution under the Securities Act, the Exchange Act or otherwise
available.
6. Additional Covenants.
6.1 Additional Shares or Options. The Company hereby agrees that until the earlier of
the consummation of a Business Combination or the distribution of the Trust Account referred to in
Section 6.7 hereof, it shall not issue any shares of Common Stock or any options or other
securities convertible into Common Stock, or any shares of Preferred Stock which participate in any
manner in the Trust Account or which vote as a class with the Common Stock on a Business
Combination.
6.2 Trust Account Waiver Acknowledgment. The Company hereby agrees that prior to
commencing its due diligence investigation of any operating business in the technology, multimedia
or networking sectors which the Company seeks to acquire for its initial Business Combination (
“Target Business”) or obtaining the services of any vendor it will use its reasonable best efforts
to cause the Target Business or the vendor to execute a waiver letter substantially in the form of
letter attached hereto as Exhibit B and C, respectively. It is understood that the
Company may not be able to obtain such a waiver letter in some or all circumstances, and in the
event that a vendor or Target Business refuses to enter into such a waiver letter, the Company may
engage such vendor or commence due diligence investigations of, or enter into discussions with,
such Target Business, provided the Company determines that it would be unable to obtain, on a
reasonable basis, substantially similar services or opportunities from another entity willing to
enter into such a waiver.
6.3 Insider Letters and Lock-up Agreements. The Company shall not take any action or
omit to take any action that would cause a breach of any of the Insider Letters or the Lock-up
Agreements and will not allow any amendments to, or waivers of any provisions of, such Insider
Letters or the Lock-up Agreements without the prior written consent of the Representative, which
consent shall not be unreasonably withheld.
6.4 Placement Unit Purchase Agreement. The Company shall not take action or omit to
take any action that would cause a breach of the Placement Unit Purchase Agreement executed by and
among each Initial Stockholder, TEP and the Company and will not allow any amendments to, or
waivers of any provisions of, such Placement Unit Purchase Agreement without the prior written
consent of TEP.
6.5 Certificate of Incorporation and Bylaws. The Company shall not take any action or
omit to take any action that would cause the Company to be in breach or violation of its Amended
and Restated Certificate of Incorporation or Bylaws. Prior to the consummation of a Business
Combination or until the distribution of the Trust Account referred to in Section 6.7 hereof, the
Company will not amend its Amended and Restated Certificate of Incorporation without the prior
written consent of the Representative, which consent shall not be unreasonably withheld.
6.6 [Reserved.]
6.7 Acquisition/Distribution Procedure. The Company agrees that: (i) prior to the
consummation of the initial Business Combination, it will submit such transaction to the Company’s
stockholders for their approval (“Business Combination Vote”) even if the nature of the acquisition
is such as would not ordinarily require stockholder approval under applicable state law; and (ii)
in the event that the Company does not effect a Business Combination within 18 months from the
consummation of this Offering (subject to extension for an additional six-month period, as
described in the Prospectus), the Company will be liquidated and will distribute to all holders of
the Common Stock issued as part of the Units in this Offering (“IPO Shares”) an aggregate sum equal
to the Company’s “Liquidation Value.” The Company’s “Liquidation Value” shall mean the Company’s
book value, as determined by the Company and approved by BDO or the independent registered public
accounting firm then engaged by the Company. In no event, however, will the Company’s Liquidation
Value be less than the amount of funds in the Trust Account, (inclusive of any net interest income
thereon, including any net interest income earned on the portion of the proceeds held in the Trust
Account representing the Deferred Discount (less applicable taxes), the proceeds held in trust from
this Offering and the 2% of the proceeds held in the Trust Account representing the Deferred
Discount). Only holders of IPO Shares shall be entitled to receive liquidating distributions and
the
19
Company shall pay no liquidating distributions with respect to any other shares of capital
stock of the Company. With respect to the initial Business Combination Vote, the Company shall
cause (i) the Initial Stockholder to vote all shares of Common Stock held by it prior to this
Offering in accordance with the vote of a majority of the Public Stockholders (as defined below),
and (ii) the Initial Stockholder and the officers, directors and special advisors of the Company to
vote any shares of Common Stock acquired by them in the Private Placement or in connection with or
following this Offering in favor of a Business Combination. At the time the Company seeks approval
of the initial Business Combination, the Company will offer to each holder of IPO Shares other than
the Initial Stockholder and the officers, directors and special advisors of the Company (the
“Public Stockholders”) the right to convert their IPO Shares at a per share conversion price (the
“Conversion Price”), calculated as of two business days prior to the consummation of such proposed
Business Combination, equal to (A) (x) the amount in the Trust Account, inclusive of any net
interest income thereon (including any net interest income earned on the portion of the proceeds
held in the Trust Account representing the Deferred Discount), less applicable taxes, less up to
$750,000 of interest to be released to the Company to cover operating expenses, (y) the proceeds
held in trust from this Offering, and (z) the 2% of the proceeds held in the Trust Account
representing the Deferred Discount divided by (B) the total number of IPO Shares. If a majority of
the shares voted by the Public Stockholders are voted to approve the initial Business Combination,
and if Public Stockholders with less than 20% in interest of the Company’s IPO Shares vote against
such approval of a Business Combination and elect to convert their IPO Shares, the Company may, but
will not be required to, proceed with such Business Combination. If the Company elects to so
proceed, it will convert shares, based upon the Conversion Price, from those Public Stockholders
who affirmatively requested such conversion and who voted against the Business Combination. Only
Public Stockholders shall be entitled to receive distributions from the Trust Account in connection
with the approval of an initial Business Combination, and the Company shall pay no distributions
with respect to any other holders or shares of capital stock of the Company. If holders of 20% or
more in interest of the IPO Shares vote against approval of any potential Business Combination and
elect to convert their IPO Shares, the Company will not proceed with such Business Combination and
will not convert such shares.
6.8 Rule 419. The Company agrees that it will use its reasonable best efforts to
prevent the Company from becoming subject to Rule 419 under the Securities Act prior to the
consummation of any Business Combination, including but not limited to using its best efforts to
prevent any of the Company’s outstanding securities from being deemed to be a “▇▇▇▇▇ stock” as
defined in Rule 3a-51-1 under the Exchange Act during such period.
6.9 Presentation of Potential Target Businesses. The Company shall cause each of its
officers and directors to agree that, in order to minimize potential conflicts of interest which
may arise from multiple affiliations, each such officer or director will present to the Company for
its consideration, prior to presentation to any other person or company, any suitable opportunity
to acquire a Target Business, until the earlier of the consummation by the Company of a Business
Combination, the distribution of the Trust Account or until such time as the officer or director
ceases to be an officer or director of the Company, subject to any fiduciary obligations that were
established prior to the establishment such officer’s or director’s fiduciary relationship with the
Company.
6.10 Target Net Assets. The Company agrees that the initial Target Business in a
Business Combination must have a fair market value equal to at least 80% of the Company’s net
assets at the time of such Business Combination. The fair market value of such business must be
determined by the Board of Directors of the Company based upon standards generally accepted by the
financial community, such as actual and potential sales, earnings and cash flow and book value. If
the Board of Directors of the Company is not able to independently determine that the Target
Business has a fair market value of at least 80% of the Company’s net assets at the time of such
Business Combination, the Company will not consummate such Business Combination unless it first
obtains an opinion from an unaffiliated, independent investment banking firm that is a member of
the NASD with respect to the satisfaction of such criteria.
7. Representations and Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this Agreement shall be
deemed to be representations, warranties and agreements at the Closing Dates and such
representations, warranties and agreements of the Underwriters and Company, including the indemnity
agreements contained in Section 5 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, the Company or any
controlling person, and shall survive termination of this Agreement or the issuance and delivery of
20
the Securities to the several Underwriters.
8. Termination
8.1 Termination. This Agreement may be terminated by you by notice to the Company at
any time prior to the Closing Date or any Option Closing Date (if different from the Closing Date
and then only as to Option Units) if any of the following has occurred: (i) since the respective
dates as of which information is given in the Preliminary Prospectus, the Registration Statement
and the Prospectus, any material adverse change or any development involving a prospective material
adverse change in or affecting the condition or prospects of the Company, whether or not arising in
the ordinary course of business, as in the Representative’s judgment would make it impracticable to
proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the
Underwriters for the sale of the Securities (ii) if the United States shall become involved in a
new war or an increase in major hostilities, (iii) suspension of trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or
limitation on prices (other than limitations on hours or numbers of days of trading) for securities
on any such Exchange, (iv) the enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which in your reasonable
opinion materially and adversely affects the business or operations of the Company, (v) the
declaration of a banking moratorium by United States or New York State authorities, (vi) the
suspension of trading of the Company’s Units by the American Stock Exchange, the Commission, or any
other governmental authority, (vii) the taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse
effect on the securities markets in the United States; or (viii) as provided in Section 4 of this
Agreement.
8.2 Expenses. In the event that this Agreement shall not be carried out for any
reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms
herein, the obligations of the Company to pay the out of pocket expenses related to the
transactions contemplated herein shall be governed by Section 3.9 hereof.
8.3 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.
9. Default by an Underwriter.
9.1 Default Not Exceeding 10% of Firm Units or Option Units. If any Underwriter or
Underwriters shall default in its or their obligations to purchase the Firm Units or the Option
Units, if the over-allotment option is exercised, hereunder, and if the number of the Firm Units or
Option Units with respect to which such default relates does not exceed in the aggregate 10% of the
number of Firm Units or Option Units that all Underwriters have agreed to purchase hereunder, then
such Firm Units or Option Units to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to their respective commitments hereunder.
9.2 Default Exceeding 10% of Firm Units or Option Units. In the event that the
default addressed in Section 9.1 above relates to more than 10% of the Firm Units or Option Units,
you may in your discretion arrange for yourself or for another party or parties to purchase such
Firm Units or Option Units to which such default relates on the terms contained herein. If within
one business day after such default relating to more than 10% of the Firm Units or Option Units you
do not arrange for the purchase of such Firm Units or Option Units, then the Company shall be
entitled to a further period of one business day within which to procure another party or parties
reasonably satisfactory to you to purchase said Firm Units or Option Units on such terms. In the
event that neither you nor the Company arrange for the purchase of the Firm Units or Option Units
to which a default relates as provided in this Section 9, this Agreement will be terminated without
liability on the part of the Company (except as provided in Sections 5 and 8 hereof) or the several
Underwriters (except as provided in Section 5 hereof); provided, however, that if such default
occurs with respect to the Option Units, this Agreement will not terminate as to the Firm Units;
and provided further that nothing herein shall relieve a defaulting Underwriter of its liability,
if any, to the other several Underwriters and to the Company for damages occasioned by its default
hereunder.
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9.3 Postponement of Closing Date. In the event that the Firm Units or Option Units to
which the default relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties as aforesaid, 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 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 Underwriters may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any party substituted under this Section 9
with like effect as if it had originally been a party to this Agreement with respect to such
Securities.
10. Miscellaneous.
10.1 Notices. All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and shall be mailed, delivered or telecopied and confirmed and shall
be deemed given when so delivered or telecopied and confirmed or if mailed, two days after such
mailing
| If to the Representative: | ||
| ThinkEquity Partners LLC | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇ ▇▇▇▇▇▇▇ |
Copy to:
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP | ||
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. |
If to the Company:
| Acquicor Technology Inc. | ||
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇ | ||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. |
Copy to:
| ▇▇▇▇▇▇ Godward LLP | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
10.2 Headings. The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or interpretation of any of the
terms or provisions of this Agreement.
10.3 Amendment. This Agreement may only be amended by a written instrument executed
by each of the parties hereto.
10.4 Entire Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and thereof, and
supersede all prior agreements and understandings of the parties, oral and written, with respect to
the subject matter hereof.
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10.5 Binding Effect. This Agreement shall inure solely to the benefit of and shall be
binding upon the several Underwriters, the Company and the controlling persons, directors and
officers referred to in Section 5 hereof, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provisions herein contained.
10.6 Governing Law. 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, 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 located in the City and County 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 this Section 10. 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.
10.7 No Fiduciary Duty. The Company acknowledges and agrees that (i) the purchase and
sale of the Units pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and each of the Underwriters, on the other, (ii) in connection therewith
each Underwriter is acting solely as a principal and not as the agent or fiduciary of the Company,
(iii) each Underwriter has not assumed an advisory or fiduciary responsibility in favor of the
Company with respect to the Offering (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that any Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company in connection with the Offering.
10.8 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.
10.9 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.
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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.
| Very truly yours, ACQUICOR TECHNOLOGY INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted on the date first
above written:
above written:
THINKEQUITY PARTNERS LLC
Acting Severally on behalf of themselves and the
several Underwriters named on Schedule I hereto
Acting Severally on behalf of themselves and the
several Underwriters named on Schedule I hereto
By: |
||||
| Title: |
24
SCHEDULE 2.18.4
[ List all Company directors, officers and beneficial owners of Company stock that have NASD affiliations ]
EXHIBIT A
[Form of Opinion of ▇▇▇▇▇▇ Godward]
EXHIBIT B
Gentlemen:
Reference is made to the Prospectus of Acquicor Technology Inc. (the “Company”), dated
, 2006 (the “Prospectus”). Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the trust account
at ▇▇▇▇▇▇ Brothers maintained by Continental Stock Transfer & Trust (the “Trust Account”),
initially in the amount of $ , for the benefit of the Public Stockholders and that the
Company may disburse monies from the Trust Account only (i) to the Public Stockholders in the event
of the redemption of their shares or the liquidation of the Company or (ii) to the Company after it
consummates an initial Business Combination.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of
consummating an initial Business Combination with it, the undersigned hereby agrees that it does
not have any right, title, interest or claim of any kind in or to any monies in the Trust Account
(“Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of,
any negotiations, contracts or agreements with the Company and will not seek recourse against the
Trust Account for any reason whatsoever.
EXHIBIT C
Gentlemen:
Reference is made to the Prospectus of Acquicor Technology Inc. (the “Company”), dated
, 2006 (the “Prospectus”). Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Prospectus.
We have read the Prospectus and understand that the Company has established the trust account
at ▇▇▇▇▇▇ Brothers maintained by Continental Stock Transfer & Trust (the “Trust Account”),
initially in the amount of $ , for the benefit of the Public Stockholders and that the
Company may disburse monies from the Trust Account only (i) to the Public Stockholders in the event
of the redemption of their shares or the liquidation of the Company or (ii) to the Company after it
consummates an initial Business Combination.
For and in consideration of the Company engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in
or to any monies in the Trust Account (“Claim”) and hereby waives any Claim it may have in the
future as a result of, or arising out of, any negotiations, contracts or agreements with the
Company and will not seek recourse against the Trust Account for any reason whatsoever.