Exhbiit 1.1
Draft - October 15, 2006
11,250,000 Units
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
UNDERWRITING AGREEMENT
October ___, 2006
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
addressStreet60 Wall Street, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation, a Delaware corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto for whom you are acting as representative (the
"Representative") an aggregate of 11,250,000 units (the "Firm Units"), with each
unit consisting of one share of the Company's common stock, $0.0001 par value
(the "Common Stock") and one warrant ("Warrant") to purchase Common Stock. The
respective amounts of the Firm Units to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option ("Over-allotment
Option") an aggregate of up to 1,687,500 additional units of the Company (the
"Option Units") as set forth below. The terms of the Warrants are provided for
in the form of a Warrant Agreement (as defined herein).
As the Representative, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting severally and not
jointly, to purchase the numbers of Firm Units set forth opposite their
respective names in Schedule I, plus their pro rata portion of the Option Units
if you elect to exercise the Over-allotment Option in whole or in part for the
accounts of the several Underwriters. The Firm Units and the Option Units (to
the extent the aforementioned option is exercised) are herein collectively
called 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 included in the Units are hereinafter referred to as the
"Securities."
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In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Underwriters as
follows:
(a) A registration statement on Form S-1 (File No. 333-136048) with
respect to the Securities has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) under the Act, is herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rules 430A or 430C under the
Act and contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration Statement has
been filed as of the date of this Agreement (the "Effective Date"). "Prospectus"
means the form of prospectus first filed with the Commission pursuant to and
within the time limits described in Rule 424(b) under the Act. Each preliminary
prospectus included in the Registration Statement prior to the time it becomes
effective is herein referred to as a "Preliminary Prospectus." Any reference
herein to the Prospectus shall be deemed to include any supplements or
amendments thereto filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Act, and prior to the termination of the
offering of the Units by the Underwriters. The Company has filed with the
Commission a Form 8-A (File Number 001-33075) providing for the registration
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
the Securities.
(b) As of the Applicable Time (as defined below) and as of the
Closing Date or the Option Closing Date, as the case may be, the Statutory
Prospectus (as defined below) and the information included on Schedule II
hereto, all considered together (collectively, the "General Disclosure Package")
did not and will not include any untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from the
General Disclosure Package in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through
the Representative specifically for use therein, it being understood and agreed
that the only such information is that described in Section 12 herein. The
Company has not prepared or used and will not prepare or use a "free writing
prospectus" as defined in Rule 405 under the Act, in connection with the
offering of Securities. As used in this subsection and elsewhere in this
Agreement:
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"Applicable Time" means 5:00 pm (StateStateNew York time) on the date
of this Agreement or such other time as agreed to by the Company and the
Representative.
"Statutory Prospectus" as of any time means the Preliminary Prospectus
relating to the Securities that is included in the Registration Statement
immediately prior to that time.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement, the General Disclosure
Package and the Prospectus. The Company has no subsidiaries, direct or indirect.
The Company is duly qualified to transact business and in good standing in all
jurisdictions in which the conduct of its business requires such qualification.
(d) The outstanding shares of Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable. The shares of Common
Stock included in the Units have been duly authorized and, when issued and paid
for as contemplated herein, will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to
any of such shares or the issue and sale thereof. The shares of Common Stock
issuable upon exercise of the Warrants have been duly authorized and, when
issued and paid for as contemplated in the Warrants and the Warrant Agreement,
will be validly issued, fully paid and non-assessable; and no preemptive rights
of stockholders exist with respect to any of such shares or the issue and sale
thereof.
(e) The Warrants included in the Units have been duly authorized and,
when executed by the Company, countersigned in the manner provided for in the
Warrant Agreement and delivered and paid for as contemplated herein, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(f) Neither the filing of the Registration Statement nor the offering
or sale of the Units as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or relating to the
registration of any securities of the Company. Except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, no
holders of any securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the right to
require the Company to register any such securities of the Company under the Act
or to include any such securities in a registration statement to be filed by the
Company.
(g) The information set forth under the caption "Capitalization" in
the Registration Statement and the Prospectus (and any similar section or
information contained in the General Disclosure Package) is true and correct.
All of the Securities conform to the
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descriptions thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus. The form of the certificates for the
shares of Common Stock conforms to the General Corporation law of the State of
Delaware.
(h) Neither the Commission nor any state regulatory authority has
issued an order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus relating to the proposed offering of the Units, and no
proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or, to the Company's knowledge, threatened by the Commission or any
state regulatory authority. Neither the Commission nor any state regulatory
authority has issued any order preventing or suspending the effectiveness of the
Registration Statement and no proceeding for that purpose or pursuant to Section
8A of the Act has been instituted or is pending or is contemplated or threatened
by the Commission. The Registration Statement contains, and the Prospectus and
any amendments or supplements thereto will contain, all statements which are
required to be stated therein by, and will conform to, the requirements of the
Act and the Rules and Regulations. The Registration Statement and any amendment
thereto do not contain, and will not contain, any untrue statement of a material
fact and do not omit, and will not omit, to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus and any amendments and supplements thereto do not contain, and will
not contain, any untrue statement of a material fact; and do not omit, and will
not omit, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information is that
described in Section 12 herein.
(i) The Company has not, directly or indirectly, distributed and will
not distribute any offering material in connection with the offering and sale of
the Units other than any Preliminary Prospectus, the Prospectus and other
materials, if any, permitted under the Act.
(j) The financial statements of the Company, together with related
notes and schedules as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, present fairly the financial position and
the results of operations and cash flows of the Company, at the indicated dates
and for the indicated periods. Such financial statements and related schedules
comply with the applicable accounting requirements of the Act and the Rules and
Regulations and have been prepared in accordance with generally accepted
principles of accounting ("GAAP"), consistently applied throughout the periods
involved, except as disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary and
selected financial and statistical data included in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly the information
shown therein and such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of the Company.
The Company does not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet
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obligations or any "variable interest entities" within the meaning of Financial
Accounting Standards Board Interpretation No. 46), not disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus. There
are no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the General Disclosure Package or the
Prospectus that are not included as required.
(k) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, who have certified certain financial
statements that are filed with the Commission as part of the Registration
Statement, the General Disclosure Package and the Prospectus, is an independent
registered public accounting firm with respect to the Company within the meaning
of the Act and the applicable Rules and Regulations and the Public Company
Accounting Oversight Board (United States) (the "PCAOB").
(l) Except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, the Company is not aware of (i) any
material weakness in its internal control over financial reporting or (ii)
change in internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting.
(m) Solely to the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended, and the rules and regulations promulgated by the Commission and the
American Stock Exchange thereunder (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") has been
applicable to the Company, there is and has been no failure on the part of the
Company to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company 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 and is actively taking
steps to ensure that it will be in compliance with other provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect or which will become applicable to
the Company.
(n) There is no action, suit, claim or proceeding pending or, to the
knowledge of the Company, threatened against the Company or, to the knowledge of
the Company, pending or threatened against any of the Company's stockholders
immediately prior to the offering of Units (the "Initial Stockholders"), before
any court or administrative agency or otherwise which if determined adversely to
the Company would either (i) have, individually or in the aggregate, a material
adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company or (ii) prevent the consummation of the transactions contemplated hereby
(the occurrence of any such effect or any such prevention described in the
foregoing clauses (i) and (ii) being referred to as a "Material Adverse
Effect"), except as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(o) The Company has good and marketable title to all of the
properties and assets reflected in the financial statements hereinabove
described or described in the Registration Statement, the General Disclosure
Package and the Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or
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described in the Registration Statement, the General Disclosure Package and the
Prospectus or which are not material in amount.
(p) Since the respective dates as of which information is given in
the Registration Statement, the General Disclosure Package and the Prospectus,
as each may be amended or supplemented, there has not been any event or
development in respect of the business or condition of the Company that,
individually or in the aggregate, would have a Material Adverse Effect, whether
or not occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company, other than transactions in the ordinary
course of business and changes and transactions described in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be
amended or supplemented and no member of the Company's management has resigned
from any position with the Company. The Company has no material contingent
obligations which are not disclosed in the Company's financial statements which
are included in the Registration Statement, the General Disclosure Package and
the Prospectus.
Subsequent to the respective dates as of which information is given in
the Registration Statement, the General Disclosure Package and the Prospectus,
except as otherwise specifically stated therein or in this Agreement, the
Company has not: (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money; or (ii) declared or paid
any dividend or made any other distribution on or in respect to its capital
stock.
(q) The Company is not, nor with the giving of notice or lapse of
time or both, will be, (i) in violation of its certificate of incorporation or
by-laws, (ii) in violation of or in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it, or any of its properties, is bound or (iii) in violation of any
law, order, rule or regulation, judgment, order, writ or decree applicable to
the Company of any court or of any government, regulatory body or administrative
agency or other governmental body having jurisdiction over the Company, its
properties or assets. The execution, delivery and performance of this Agreement,
the Warrant Agreement and the Trust Agreement (as defined below), and the
consummation of the transactions herein and therein contemplated and the
fulfillment of the terms hereof and thereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or instrument to which
the Company is a party or by which the Company or any of its properties is
bound, or of the certificate of incorporation or by-laws of the Company or any
law, order, rule or regulation judgment, order, writ or decree applicable to the
Company of any court or of any government, regulatory body or administrative
agency or other governmental body having jurisdiction over the Company, its
properties or assets.
(r) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement, the Warrant Agreement and the Trust
Agreement have been duly and validly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been duly executed and
delivered by the Company. On the Closing Date, the
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Warrant Agreement and the Trust Agreement will have been duly executed and
delivered and they will constitute the valid and binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally; (ii) as such enforceability is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and (iii) as enforceability of any
indemnification and contribution provisions may be limited under state or
federal securities laws.
(s) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement, the Warrant Agreement and the Trust Agreement, and
the consummation of the transactions herein and therein contemplated (except
such additional steps as may be required by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD") or such additional steps as
may be necessary to qualify the Securities for public offering by the
Underwriters under state securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(t) The Company holds all material licenses, certificates and permits
from governmental authorities which are necessary to the conduct of its
business.
(u) Neither the Company, nor to the Company's knowledge, any of its
affiliates, has taken or will take, directly or indirectly, any action designed
to cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Securities.
(v) 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, the General
Disclosure Package and the Prospectus, will not be an "investment company"
within the meaning of such term under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations of the Commission
thereunder.
(w) The Company maintains 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 to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(x) The statistical, industry-related and market-related data
included in the Registration Statement, the General Disclosure Package and the
Prospectus are based on or
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derived from sources which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from which they are
derived.
(y) The operations of the Company are and have been conducted at all
times in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and
regulations thereunder (collectively, the "Money Laundering Laws"), and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the
Money Laundering Laws is pending or, to the Company's knowledge, threatened.
(z) Neither the Company nor, to the Company's knowledge, any
director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(aa) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(bb) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or 5% or greater securityholders.
(cc) The Units, the Warrants and the Common Stock have been approved
for listing subject to notice of issuance on the American Stock Exchange.
(dd) There are no relationships or related-party transactions
involving the Company or any other person required to be described in the
Registration Statement, the General Disclosure Package and the Prospectus which
have not been described as required.
(ee) The Company has not made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any law which
8
violation is required to be disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus.
(ff) To the Company's knowledge, all information contained in the
questionnaires completed by each of the Company's Initial Stockholders and
provided to the Representative as an exhibit to his or her Insider Letter (as
defined herein) is true and correct in all material respects and the Company has
not become aware of any information which would cause the information disclosed
in the questionnaires completed by each Initial Stockholder to become inaccurate
and incorrect in any material respect.
(gg) There are no claims, payments, arrangements, agreements or
understandings relating to the payment of a finder's, consulting or origination
fee by the Company or any Initial Stockholder with respect to the sale of the
Securities hereunder or any other arrangements, agreements or understandings of
the Company or, to the Company's knowledge, any Initial Stockholder that may
affect the Underwriters' compensation, as determined by the NASD. The Company
has not made any direct or indirect payments (in cash, securities or otherwise)
to: (i) any person, as a finder's fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing to
the Company persons who raised or provided capital to the Company; (ii) to any
NASD member; or (iii) 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. None of the net proceeds of the offering will be paid by
the Company to any participating NASD member or its affiliates, except as
specifically authorized herein and except as may be paid in connection with an
initial acquisition or acquisition of control by the Company of one or more
assets or operating businesses in the telecommunications and media industries
through a merger, capital stock exchange, asset or stock acquisition or other
similar business combination ("Business Combination") and/or one or more other
transactions after the initial Business Combination, including without
limitation in connection with the payment of investment banking fees, fees in
connection with fairness opinions and the like.
(hh) The Company has entered into a warrant agreement with respect to
the Warrants with Continental Stock Transfer & Trust Company substantially in
the form of Exhibit 4.4 to the Registration Statement (the "Warrant Agreement").
The Company has entered into the Trust Agreement with respect to certain
proceeds of the offering substantially in the form of Exhibit 10.8 to the
Registration Statement.
(ii) The Company has caused to be duly executed legally binding and
enforceable agreements (except (i) as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally; (ii) as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and (iii) as enforceability of
any indemnification and contribution provisions may be limited under state or
federal securities laws) in the form filed as Exhibit 10.13 to the Registration
Statement (the "Insider Letters"), pursuant
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to which each of the Initial Stockholders of the Company has agreed to certain
matters including, but not limited to, certain matters described as being agreed
to by him under the "Proposed Business" section of the Registration Statement,
the General Disclosure Package and the Prospectus, including, in the case of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, certain indemnification provisions.
(jj) Except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus, no Initial Stockholder, employee, officer
or director of the Company is subject to any non-competition or non-solicitation
agreement with any employer or prior employer which could materially affect his
ability to be an Initial Stockholder, employee, officer and/or director of the
Company.
(kk) Upon delivery and payment for the Firm Units on the Closing Date,
the Company will not be subject to Rule 419 under the 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.
(ll) The Company does not have any specific Business Combination under
consideration or contemplation and the Company has not, nor has anyone on its
behalf, either directly or indirectly, contacted any potential target business
or their representatives or had any discussions, formal or otherwise, with any
of the foregoing with respect to effecting a business combination with the
Company. The Company has not engaged or retained any agent or other
representative to identify or locate any suitable target.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM UNITS.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriters and each Underwriter agrees, severally and
not jointly, to purchase, at a price of $7.76 per Unit (the "Initial Purchase
Price") (less $0.32 per Unit purchased hereunder (the "Deferred Discount")
payable to the Underwriters upon consummation of a Business Combination, subject
to Section 4(gg) hereof), the number of Firm Units set forth opposite the name
of each Underwriter in Schedule I hereof, subject to adjustments in accordance
with Section 13 hereof.
(b) Payment for the Firm Units to be sold hereunder is to be made in
Federal (same day) funds against delivery of certificates therefor to the
Representative for the several accounts of the Underwriters. Such payment and
delivery are to be made through the facilities of The Depository Trust Company
("DTC"), New York, New York at 10:00 a.m., New York time, on the third business
day after the date of this Agreement (or the fourth business day following the
date of this Agreement, if the offering is priced after 4:30 p.m., New York
time) or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and are not permitted by law or
executive order to be closed.) Payment of $87,300,000, representing the
aggregate purchase price for the Firm
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Units based on the Initial Purchase Price, shall be made on the Closing Date by
wire transfer in Federal (same day) funds, as follows: $84,650,000 (including
$3,600,000, representing the aggregate Deferred Discount without giving effect
to the Over-allotment Option) shall be deposited by the Representative directly
in the trust account established by the Company for the benefit of the public
securityholders as described in the Registration Statement (the "Trust Account")
pursuant to the terms of an Investment Management Trust Agreement (the "Trust
Agreement"), and the remaining $2,650,000 of the proceeds (representing
$2,100,000 of the proceeds not required to be held in the Trust Account and
$550,000 of offering expenses), shall be paid to the Company, upon delivery to
you of certificates (in form and substance satisfactory to the Representative)
representing the Firm Units (or through the facilities of DTC) for the account
of the Underwriters. The certificates for the Firm Units will be delivered in
such denominations and in such registrations as the Representative requests in
writing not later than the second full business day prior to the Closing Date,
and will be made available for inspection by the Representative at least one
business day prior to the Closing Date.
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants the Over-allotment Option to the several Underwriters to
purchase the Option Units at the price per Unit as set forth in the first
paragraph of this Section 2. The Over-allotment Option granted hereby may be
exercised in whole or in part by giving written notice at any time within 30
days after the date of this Agreement, by you, as Representative of the several
Underwriters, to the Company setting forth the number of Option Units as to
which the several Underwriters are exercising the option and the time and date
at which such certificates are to be delivered. The time and date at which
certificates for Option Units are to be delivered shall be determined by the
Representative but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The number of Option Units to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Units being
purchased as the number of Firm Units being purchased by such Underwriter bears
to the total number of Firm Units, adjusted by you in such manner as to avoid
fractional units. The Over-allotment Option granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Units by the Underwriters.
You, as Representative of the several Underwriters, may cancel such option at
any time prior to its expiration by giving written notice of such cancellation
to the Company. To the extent, if any, that the option is exercised, payment for
the Option Units shall be made on the Option Closing Date in Federal (same day
funds) through the facilities of DTC in New York, New York drawn to the order of
the Company. Payment for the Option Units shall be made on the Option Closing
Date by wire transfer in Federal (same day) funds, as follows: $7.76 per Option
Unit sold (including the Deferred Discount) shall be deposited in the Trust
Account pursuant to the Trust Agreement upon delivery to you of certificates (in
form and substance satisfactory to the Representative) representing the Option
Units sold (or through the facilities of DTC) for the account of the
Underwriters.
11
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Units as soon as the Representative deems it advisable to
do so. The Firm Units are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representative may from
time to time thereafter change the public offering price and other selling
terms. It is further understood that you will act as the Representative for the
Underwriters in the offering and sale of the Units in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (A) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved
by the Representative containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A or 430C of
the Rules and Regulations and (B) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus of which the Representative shall not previously have
been advised and furnished with a copy or to which the Representative shall have
reasonably objected in writing or which is not in compliance with the Rules and
Regulations.
(b) The Company will not make any offer relating to the Securities
that would constitute a "free writing prospectus" (as defined in Rule 405 under
the Act) required to be filed by the Company with the Commission under Rule 433
under the Act.
(c) The Company will advise the Representative promptly (A) when the
Registration Statement or any post-effective amendment thereto shall have become
effective, (B) of receipt of any comments from the Commission, (C) of any
request of the Commission for amendment of the Registration Statement or for
supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, or of the institution of any proceedings for that purpose or
pursuant to Section 8A of the Act. The Company will use its reasonable best
efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representative in endeavoring
to qualify the Securities for sale under the securities laws of such
jurisdictions as the Representative may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and
12
other documents, as are or may be required to continue such qualifications in
effect for so long a period as the Representative may reasonably request for
distribution of the Securities.
(e) The Company will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any Preliminary Prospectus
as the Representative may reasonably request. The Company will deliver to, or
upon the order of, the Representative during the period when delivery of a
Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under
the Act) is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representative may
reasonably request. The Company will deliver to the Representative at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representative such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as the Representative
may reasonably request.
(f) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Units as contemplated in this Agreement and the Prospectus. If during the period
in which a prospectus (or, in lieu thereof, the notice referred to under Rule
173(a) under the Act) is required by law to be delivered by an Underwriter or
dealer, any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of the Underwriters, it becomes necessary
to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law.
(g) If the General Disclosure Package is being used to solicit offers
to buy the Securities at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not
misleading, or to make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is necessary at
any time to amend or supplement the General Disclosure Package to comply with
any law, the Company promptly will prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package.
(h) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the Effective Date, an earnings statement (which need not be
audited) in reasonable detail, covering a period
13
of at least 12 consecutive months beginning after the Effective Date, which
earnings statement shall satisfy the requirements of Section 11(a) of the Act
and Rule 158 under the Act and will advise you in writing when such statement
has been so made available.
(i) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(j) Except for securities issued in the Private Placement (as defined
below), the Company hereby agrees that until the Company consummates a Business
Combination, 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. Notwithstanding the foregoing,
if (1) during the last 17 days of the restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the restricted period, the Company
announces that it will release earnings results during the 16-day period
following the last day of the restricted period, then in each case the
restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the date of the release of the
earnings results or the occurrence of material news or a material event relating
to the Company, as the case may be, unless the Representative waives, in
writing, such extension.
(k) The Company will use its best efforts to effect and maintain the
listing of the Securities on the American Stock Exchange ("AMEX").
(l) The Company shall apply the net proceeds of its sale of the
Securities as set forth in the Registration Statement, General Disclosure
Package and the Prospectus and shall file such reports with the Commission with
respect to the sale of the Securities and the application of the proceeds
therefrom as may be required in accordance with Rule 463 under the Act.
(m) The Company will maintain a transfer agent, warrant agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Units, Common Stock and Warrants, as applicable.
(n) The Company will not take, directly or indirectly, any action
that constitutes or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company.
(o) For a period of four years from the Effective Date, or such
earlier time upon which the Company is required to be liquidated, the Company
will use its reasonable best efforts to maintain the registration of the
Securities under the provisions of the Exchange Act.
14
(p) For a period of four years from the Effective Date, or until such
earlier date upon which the Company is required to be liquidated, the Company,
at its expense, shall cause its regularly engaged independent registered public
accounting firm to review (but not audit) the Company's financial statements for
each of the first three fiscal quarters prior to the announcement of quarterly
financial information and the filing of the Company's Form 10-Q quarterly
report.
(q) The Company shall not consummate a Business Combination with any
Initial Stockholder, or officer or director of the Company, or any entity which
is affiliated with any Initial Stockholder or officer or director of the Company
without first obtaining an opinion from an independent investment banking firm
that such Business Combination is fair to the Company's stockholders from a
financial point of view.
Except as described in the Registration Statement, General Disclosure
Package and the Prospectus, and other than payment pursuant to the
administrative services agreement, dated July 24, 2006, between the Company and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital, LLC, pursuant to which ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital, LLC
will make available to the Company certain office space and certain office and
general and administrative services, the Company shall not pay any Initial
Stockholder or any of their affiliates or family members any fees or
compensation from the Company, for services rendered to the Company prior to, or
in connection with, the consummation of an initial Business Combination;
provided that the Initial Stockholders shall be entitled to reimbursement from
the Company, subject to approval by the Board of Directors of the Company, for
their reasonable out-of-pocket expenses incurred in connection with seeking and
consummating an initial Business Combination.
(r) The Company 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 (i) all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then
in effect and applicable to it and shall take such steps as are necessary to
ensure that it will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act not currently in effect upon the effectiveness of such provisions to the
extent they are applicable to the Company and (ii) the requirements of the
American Stock Exchange's AMEX Company Guide.
(s) For a period of four years from the Effective Date or until such
earlier time upon which the Company is required to be liquidated, the Company,
upon request from the Representative, will furnish to the Representative (Attn:
Syndicate Manager with a copy to: General 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 securities, and promptly
furnish to the Representative: (i) a copy of such registration statements,
financial statements and periodic and special reports as the Company shall be
required to file with the Commission and from time to time furnishes generally
to holders of any such class of its securities; and (ii) such additional
documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Representative may from time to
15
time reasonably request, all subject to the execution of a confidentiality
agreement reasonably satisfactory to the Company.
(t) For a period equal to four years from the date hereof or until
such earlier time upon which the Company is required to be liquidated, the
Company will not take any action or actions which may prevent or disqualify the
Company's use of Form S-1 (or other appropriate form) for the registration of
the Warrants and the Common Stock issuable upon exercise of the Warrants, under
the Act.
(u) In the event any person or entity (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 issuer in finding or evaluating a merger
candidate, the Company will provide the following to the NASD and the
Representative prior to consummation of an initial Business Combination: (i)
copies of agreements governing said services (which details or agreements may be
appropriately redacted to account for privilege or confidentiality concerns),
and (ii) a justification 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 initial Business Combination.
(v) The Company will maintain a system of internal accounting
controls sufficient to provide reasonable assurances that: (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary in order to permit preparation of
financial statements in accordance with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The Company shall, on the date hereof, retain its independent
public accountants to audit the financial statements of the Company as of the
Closing Date (the "Audited Financial Statements") reflecting the receipt by the
Company of the proceeds of the 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. In addition, upon receipt of the proceeds from the
sale of any Option Units after the Closing Date, the Company shall promptly file
a second or amended Current Report on Form 8-K with the Commission, which Report
shall provide updated financial information to reflect the receipt of such
additional proceeds.
Upon the earlier to occur of (i) the expiration or termination of the
Over-allotment Option and (ii) the exercise in full of the Over-allotment
Option, the Company shall, subject to
16
having filed the Current Report(s) on Form 8-K pursuant to the previous
paragraph, promptly issue a press release announcing that separate trading of
the Warrants and Common Stock will begin on the AMEX.
(x) The Company shall advise the NASD if it is aware that any 5% or
greater securityholder of the Company (other than the Representative or its
affiliates) becomes an affiliate or associated person of an NASD member
participating in the distribution of the Securities.
(y) The Company shall, as set forth in the Trust Agreement and
disclosed in the Prospectus, cause the proceeds of the offering to be held in
the Trust Account to be invested only in "government securities" within the
meaning of Section 2(a)(16) of the 1940 Act with a maturity of 180 days or less,
or in money market funds meeting certain conditions under Rule 2a-7 promulgated
under the 1940 Act with specific maturity dates. The Company will otherwise use
its best efforts to conduct its business (both prior to and after the
consummation of an initial Business Combination) in a manner so that it will not
become subject to the 1940 Act.
(z) The Company hereby agrees that prior to commencing its due
diligence investigation of any assets or operating business which the Company
seeks to acquire ("Target Business") or obtaining the services of any vendor or
service provider or other entity it will use its reasonable best efforts to
attempt to cause the Target Business or the vendor or service provider or other
entity with which the Company executes an agreement to execute a waiver letter
in the form attached hereto as Exhibit A and B, respectively. It is understood
that the Company may not be able to obtain such letters in some or all
circumstances and that, nonetheless, the Company may still proceed with such due
diligence investigations and enter into agreements with such parties or
obtaining of services, as applicable. Furthermore, prior to commencing such due
diligence investigation, each officer and director of the Company (other than
the Initial Stockholders) shall execute a waiver letter in the form attached
hereto as Exhibit C.
(aa) The Company shall not take any action or omit to take any action
that would cause the Company to be in breach or violation of its certificate of
incorporation or by-laws and, the Company shall not take any action to amend or
modify the provisions of its certificate of incorporation that apply to the
Company during the period commencing upon the filing of the certificate of
incorporation with the Delaware Secretary of State and terminating upon the
consummation of a Business Combination, which action would result in such
amendment or modification becoming effective prior to an initial Business
Combination.
(bb) The Company agrees: (i) that, prior to the consummation of any
Business Combination, it will submit such transaction to the Company's
stockholders for their approval ("Initial Transaction Vote") even if the nature
of the acquisition is such as would not ordinarily require stockholder approval
under applicable state law; and (ii) that, in the event that the Company does
not effect a Business Combination within 18 months from the consummation of this
offering (subject to extension for an additional six-month period, as described
in
17
the Prospectus), the Company will be liquidated as described in the Prospectus.
With respect to the Initial Transaction Vote, the Company shall use its
reasonable best efforts to cause all of the Initial Stockholders to vote all
shares of Common Stock owned by them and acquired prior to this offering (the
"Initial Shares"), in accordance with the vote of the majority of the IPO Shares
(as hereinafter defined) voted (in person or by proxy), at a meeting of the
Company's stockholders called for the Initial Transaction Vote. At the time the
Company seeks approval of any potential initial Business Combination, the
Company will offer each of the holders of the Company's Common Stock issued in
this offering (the "IPO Shares"), which holders were holders on the record date
for determination of stockholders entitled to vote, the right to convert such
holder's IPO Shares at a per share price (the "Conversion Price") equal to the
amount in the Trust Account (inclusive of any interest income therein, net of
income taxes, and including the Deferred Discount) as of two business days prior
to the consummation of the Business Combination divided by the total number of
IPO Shares (including any shares held by the Initial Stockholders). If the
Company elects to proceed with a Business Combination, it will promptly after
the consummation of such Business Combination convert shares, based upon the
Conversion Price, from those holders of IPO Shares who affirmatively requested
such conversion and who voted against the initial Business Combination; provided
that such holders continue to hold such IPO Shares through consummation of the
Business Combination. If a majority of the IPO Shares that are voted are not
voted in favor of any initial Business Combination or holders of 20% or more of
the IPO Shares vote against approval of any potential initial Business
Combination and exercise their conversion rights, the Company will not proceed
with such initial Business Combination and will not convert such shares.
(cc) The Company agrees that it will use its best efforts to prevent
the Company from becoming subject to Rule 419 under the Act prior to the
consummation of any Business Combination, including, but not limited to, using
its best efforts to prevent any of the Company's outstanding securities from
being deemed to be a "▇▇▇▇▇ stock" as defined in Rule 3a-51-1 under the Exchange
Act during such period.
(dd) The Company agrees that the initial Target Business(es) that it
acquires must have an aggregate fair market value equal to at least 80% of the
Company's net assets (including the funds held in the Trust Account other than
the portion representing the Deferred Discount) at the time of such acquisition.
The fair market value of such business(es) must be determined by the Board of
Directors of the Company based upon standards the Board believes are generally
accepted by the financial community. If the Board of Directors of the Company is
not able to independently determine that the Target Business(es) have an
aggregate fair market value equal to at least 80% of the Company's net assets
(excluding the Deferred Discount) at the time of such acquisition, the Company
will obtain an opinion from an unaffiliated, independent third party appraiser,
which may or may not be an investment banking firm which is a member of the
NASD, with respect to the satisfaction of such criteria. The Company is not
required to obtain an opinion from a third party as to the fair market value if
the Company's Board of Directors independently determines that the Target
Business(es) have sufficient fair market value.
18
(ee) The Company shall deposit into the Trust Account the $4,000,000
of proceeds from the private placement ("Private Placement") of 4,000,000
Warrants to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to be completed on or prior to the Closing Date.
(ff) Within five days of the earlier to occur of the expiration or
termination of the Over-allotment Option, the Company shall purchase shares of
Common Stock from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at a price of $0.000618 per share, in an
amount (up to 421,875 shares of Common Stock) sufficient to cause the Initial
Stockholders to maintain control over Initial Shares in an amount equal to 20%
of the Company's outstanding Common Stock after giving effect to the offering of
the Units and the exercise, if any, of the Over-allotment Option. If the
Underwriters exercise the Over-allotment Option in full, the Company shall not
be required to purchase any shares of Common Stock pursuant to this subsection.
(gg) Upon consummation of the initial Business Combination, the
Company shall pay to the Representative, on behalf of the Underwriters, the
Deferred Discount, minus $0.32 per IPO Share converted to cash in accordance
with the Company's certificate of incorporation.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Prospectus, this
Agreement and the Listing Application; the filing fees of the Commission; the
filing fees and expenses (including legal fees and disbursements) incident to
securing any required review by the NASD of the terms of the sale of the Units;
and the Listing Fee of the American Stock Exchange. The Company shall not,
however, be required to pay for any of the Underwriters' expenses except that,
if this Agreement shall not be consummated because the conditions in Section 6
hereof are not satisfied, or because this Agreement is terminated by the
Representative pursuant to Section 10(a)(i) hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure, refusal or inability is
due primarily to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Units or in
contemplation of performing their obligations hereunder; but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Units.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm Units
on the Closing Date and the Option Units, if any, on the Option Closing Date are
subject to the
19
accuracy, as of the Applicable Time, the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and the Prospectus shall have been filed as
required by Rule 424 under the Act, within the time period prescribed by, and in
compliance with, the Rules and Regulations, and any request of the Commission
for additional information (to be included in the Registration Statement or
otherwise) shall have been disclosed to the Representative and complied with to
its reasonable satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose or pursuant to Section 8A under the Act shall
have been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order of
any nature by a Federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the Units.
(b) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) in the form agreed upon by the
Representative.
In rendering such opinion ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP may rely as to matters
governed by the laws of states other than StateStateNew York or Federal laws on
local counsel in such jurisdictions, provided that in each case ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP shall state that they believe that they and the Underwriters are
justified in relying on such other counsel. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that no facts
have come to the attention of such counsel that caused them to believe that (i)
the Registration Statement, at the time it became effective under the Act
(including the information deemed to be a part of the Registration Statement at
the time it became effective pursuant to Rules 430A or 430C under the Act),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) the General Disclosure Package, as of the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii) the
Prospectus, or any supplement thereto, as of its date and as of the Closing Date
or the Option Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and schedules and other
financial data therein).
20
(c) The Representative shall have received on and as of the Closing
Date or the Option Closing Date, as the case may be, an opinion and statement of
Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such
matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request to
enable them to pass upon such matters.
(d) You shall have received, on each of the date hereof, the Closing
Date and, if applicable, the Option Closing Date, a letter dated the date
hereof, the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to you, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP confirming that
they are an independent registered public accounting firm with respect to the
Company within the meaning of the Act and the applicable Rules and Regulations
and the PCAOB and stating that in their opinion the financial statements and
schedules examined by them and included in the Registration Statement, the
General Disclosure Package and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the Act and the related
Rules and Regulations; and containing such other statements and information as
are ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(e) The Representative shall have received on the Closing Date and,
if applicable, the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement and no order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus has been issued, and no proceedings for such
purpose or pursuant to Section 8A of the Act have been taken or are, to his
or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained
in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules
424, 430A, 430B or 430C under the Act have been made as and when required
by such rules;
(iv) He or she has carefully examined the General Disclosure
Package and, in his or her opinion, as of the Applicable Time, the
statements contained in the General Disclosure Package did not contain any
untrue statement of a material fact, and such General Disclosure Package
did not omit to state a material fact necessary in order to
21
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(v) He or she has carefully examined the Registration Statement
and, in his or her opinion, as of the effective date of the Registration
Statement, the Registration Statement and any amendments thereto did not
contain any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, and since the effective date of the
Registration Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment;
(vi) He or she has carefully examined the Prospectus and, in his
or her opinion, as of its date and the Closing Date or the Option Closing
Date, as the case may be, the Prospectus and any amendments and supplements
thereto did not contain any untrue statement of a material fact and did not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and
(vii) Since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package and the
Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting
the business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company, whether or not
arising in the ordinary course of business.
(f) 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.
(g) The Firm Units and Option Units, if any, have been duly listed,
subject to notice of issuance, on the American Stock Exchange.
(h) The Company shall have delivered to the Representative executed
copies of the Trust Agreement, the Warrant Agreement, and each of the Insider
Letters.
(i) The NASD has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representative and to Debevoise
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
22
If any of the conditions hereinabove provided for in this Section 6
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).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion of the
Securities required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or any such
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission made
in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section 12 herein; and
(2) to reimburse each Underwriter and each such controlling person
upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena
23
or governmental inquiry related to the offering of the Securities, whether
or not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that the
Underwriters were not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriters will promptly
return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or (ii) the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made; and
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 12 herein. This indemnity agreement will be in addition to
any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or (b). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding,
24
any indemnified party shall have the right to retain its own counsel at its own
expense. Notwithstanding the foregoing, the indemnifying party shall pay as
incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
acceptable to the indemnified party within a reasonable period of time after
notice of commencement of the action. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm for all such indemnified parties. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to
Section 8(a) or (b) and by the Company in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or
25
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), (i) no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the
Securities purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon it by any other contributing party and consents to the service of such
process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Units and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
26
9. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Syndicate
Manager, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the Company to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Acquisition Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer.
10. TERMINATION.
This Agreement may be terminated by you by notice to the Company (a)
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 Registration Statement, the General Disclosure Package and the Prospectus,
any material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company, whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or material
change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or material change on the
financial markets of the United States would, in your judgment, make it
impracticable or inadvisable to market the Units or to enforce contracts for the
sale of the Units, (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 or may materially and adversely affect
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 securities by the American Stock Exchange, the
Commission, or any other governmental authority or (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
(b) as provided in Sections 6 and 13 of this Agreement.
11. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will
27
have any right or obligation hereunder. No purchaser of any of the Units from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
12. INFORMATION PROVIDED BY UNDERWRITERS.
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in the Registration Statement, any Preliminary Prospectus, or the
Prospectus consists of the information set forth in the third, twelfth and
thirteenth paragraphs under the caption "Underwriting" in the Prospectus.
13. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the Units
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representative of the Underwriters, shall use your reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company such amounts as may be agreed upon and upon the
terms set forth herein, the Units which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
Representative, shall not have procured such other Underwriters, or any others,
to purchase the Units agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of Units with respect to which
such default shall occur does not exceed 10% of the Units to be purchased on the
Closing Date or the Option Closing Date, as the case may be, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Units which they are obligated to purchase hereunder, to purchase the
Units which such defaulting Underwriter or Underwriters failed to purchase, or
(b) if the aggregate number of Units with respect to which such default shall
occur exceeds 10% of the Units to be purchased on the Closing Date or the Option
Closing Date, as the case may be, the Company or you as the Representative of
the Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company except to the extent provided in Sections 5 and 8 hereof. In the event
of a default by any Underwriter or Underwriters, as set forth in this Section
13, the Closing Date or Option Closing Date, as the case may be, may be
postponed for such period, not exceeding seven days, as you, as Representative,
may determine in order that the required changes in the Registration Statement,
the General Disclosure Package or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 13
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain
28
in full force and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of any Underwriter or controlling
person thereof, or by or on behalf of the Company or its directors or officers
and (c) delivery of and payment for the Securities under this Agreement.
The Company acknowledges and agrees that each Underwriter in providing
investment banking services to the Company in connection with the offering of
Securities, including in acting pursuant to the terms of this Agreement, has
acted and is acting as an independent contractor and not as a fiduciary and the
Company does not intend such Underwriter to act in any capacity other than as an
independent contractor, including as a fiduciary or in any other position of
higher trust.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the law of the State of StateStateNew York, including, without limitation,
Section 5-1401 of the StateNew York General StateObligations StateLaw.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ACQUISITION CORPORATION
By
---------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representative of the several
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
29
By
----------------------------------
Authorized Officer
By
----------------------------------
Authorized Officer
30
SCHEDULE I
Schedule of Underwriters
Number of Firm Units
Underwriter to be Purchased
----------- --------------------
Deutsche Bank Securities Inc.
GunnAllen Financial, Inc.
Legend Merchant Group Inc.
----------
Total 11,250,000
31
SCHEDULE II
Trade date:
Settlement date:
Selling concession:
32
EXHIBIT A
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated October __, 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 GMAC has established the
Trust Account, initially in an amount of $___for the benefit of the Public
Stockholders and that GMAC 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 GMAC or (ii) to GMAC after it consummates an initial Business
Combination.
For and in consideration of GMAC 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 (the "Claim") and
hereby waives any Claim it may have in the future as a result of, or arising out
of, any negotiations, contracts or agreements with GMAC and will not seek
recourse against the Trust Account for any reason whatsoever.
----------------------------------
Print Name of Target Business
----------------------------------
Authorized Signature of Target Business
33
EXHIBIT B
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated October ___, 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 GMAC has established the
Trust Account, initially in an amount of $___for the benefit of the Public
Stockholders and that GMAC 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 GMAC; or (ii) to GMAC after it consummates an initial Business
Combination.
For and in consideration of GMAC 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 (the "Claim") and
hereby waives any Claim it may have in the future as a result of, or arising out
of, any negotiations, contracts or agreements with GMAC and will not seek
recourse against the Trust Account for any reason whatsoever.
----------------------------------
Print Name of Vendor
----------------------------------
Authorized Signature of Vendor
34
EXHIBIT C
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to the Final Prospectus of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition
Corporation ("GMAC"), dated October ___, 2006 (the "Prospectus"). Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Prospectus.
The undersigned officer or director of GMAC hereby acknowledges that GMAC
has established the Trust Account, initially in an amount of $______ for the
benefit of the Public Stockholders in accordance with and subject to the terms
of this letter.
The undersigned hereby waives any claim the undersigned may have in the
future as a result of, or arising out of, any contracts or agreements with the
Company to or against the Trust Account and will not seek recourse against the
Trust Account for any reason whatsoever except to the extent the undersigned is
entitled to be indemnified by the Company pursuant to the Company's Certificate
of Incorporation, as amended to the date hereof.
Notwithstanding the foregoing, such waiver shall not apply to any shares
acquired by the undersigned in the public market.
----------------------------------
Print Name of Officer/Director
----------------------------------
Authorized Signature of Officer/Director
35