CHINA VANTAGEPOINT ACQUISITION COMPANY UNDERWRITING AGREEMENT
2,500,000
Units
______________,
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
China
VantagePoint Acquisition Company, a Cayman Islands company with limited
liability (the “Company”), hereby confirms its
agreement with EarlyBirdCapital, Inc. (the “Underwriter” or “EBC”) as follows:
1.
Purchase and Sale of
Securities.
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1.1.
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Firm
Securities.
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1.1.1.
Purchase of Firm
Units. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriter an aggregate of 2,500,000 units (the
“Firm Units”) of the
Company at a purchase price (net of discounts and commissions) of $5.79 per Firm
Unit. The Underwriter agrees to purchase from the Company the 2,500,000
Firm Units at a purchase price of $5.79 per Firm Unit.
1.1.2.
The Firm Units are to be offered initially to the public
(the “Offering”) at the
offering price of $6.00 per Firm Unit. Each Firm Unit consists of one
subunit (“Subunit(s)”)
and one-half (1/2) warrant (“Warrant(s)”). Each
Subunit consists of one ordinary share of the Company, par value $.001 per share
(“Ordinary Share(s)”),
and one-half (1/2) Warrant. The Subunits and the Warrants included in the
Firm Units will not be separately transferable until 90 days after the effective
date (“Effective Date”)
of the Registration Statement (as defined in Section 2.1.1 hereof) unless EBC
informs the Company of its decision to allow earlier separate trading, but in no
event will EBC allow separate trading until the preparation of an audited
balance sheet of the Company reflecting receipt by the Company of the proceeds
of the Offering and the filing of a Current Report on Form 8-K by the Company
with the Securities and Exchange Commission (the “Commission”) which includes
such balance sheet. The Company will file the Current Report on Form 8-K
promptly after, but in no event more than four (4) days following, the
consummation of the Offering. The Ordinary Shares and Warrants included in
the Subunits shall not be separately transferable until consummation by the
Company of a Business Combination (as defined in Section 1.1.3
below).
EarlyBirdCapital,
Inc.
____________,
2010
Page 2 of
41
1.1.3.
Each whole Warrant shall entitle its holder to purchase
one Ordinary Share for $5.00 per share during the period commencing on the later
of the consummation by the Company of its Business Combination (as defined
below) and one year from the Effective Date and terminating on the earlier of
(i) the three-year anniversary of the consummation of a Business Combination,
(ii) the liquidation of the Trust Account (defined below) if the Company is
unable to consummate a Business Combination by the Termination Date (as defined
in Section 7.6.1) or (iii) upon redemption of the Warrants. As used herein, the term
“Business Combination”
shall mean a merger, share exchange, asset acquisition, plan of arrangement,
recapitalization, reorganization or similar business combination involving one
or more entities, whether or not related, or the acquisition of such entity or
entities through the use of contractual arrangements. The Company has the
right to redeem the Warrants, in whole but not in part, upon not less than
thirty (30) days’ prior written notice at a price of $0.01 per Warrant at any
time while the Warrants are exercisable; provided, however, that the last sale
price of the Ordinary Shares has been at least $8.50 for any twenty (20) trading
days within a thirty (30) trading day period ending on the third (3rd)
Business Day (defined below) prior to the day on which notice is
delivered. As used herein, the term “Business Day” shall mean any
day other than a Saturday, Sunday or any day on which national banks in New
York, New York are not open for business.
1.1.4.
Payment and
Delivery. Delivery and payment for the Firm Units shall be made at
the offices of the Underwriter at 10:00 A.M., New York time, on the third
(3rd)
Business Day following the commencement of trading of the Firm Units, or at such
other place or earlier time as shall be agreed upon by the Underwriter and the
Company. The closing of the Offering is referred to herein as the “Closing” and the hour and date
of delivery and payment for the Firm Units is referred to herein as the “Closing Date.” Payment
for the Firm Units shall be made on the Closing Date through the facilities of
Depository Trust Company (“DTC”) by wire transfer in
Federal (same day) funds. An aggregate of $14,075,000 of the proceeds
received by the Company for the Firm Units shall be deposited into the trust
account (the “Trust
Account”) established by the Company for the benefit of the Public
Shareholders (as defined below), as described in the Registration Statement and
pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”) between the
Company and Continental Stock Transfer & Trust Company (“CST&T”). The
remaining proceeds (less commissions and actual expense payments or other fees
payable pursuant to this Agreement) shall be paid to the order of the Company
upon delivery to the Underwriter of certificates (in form and substance
reasonably satisfactory to the Underwriter) representing the Firm Units (or
through the facilities of the DTC for the account of the Underwriter). The
Firm Units shall be registered in such name or names and in such authorized
denominations as the Underwriter may request in writing at least two (2)
Business Days prior to the Closing Date. The Company will permit the
Underwriter to examine and package the Firm Units for delivery at least one (1)
full Business Day prior to the Closing Date. The Company shall not be
obligated to sell or deliver the Firm Units except upon tender of payment by the
Underwriter for all the Firm Units. As used herein, the term “Public Shareholders” means the
holders of Subunits sold as part of the Units in the Offering or acquired in the
aftermarket, including any of the Initial Shareholders (as defined in Section
1.4.1 herein) to the extent they acquire such Subunits in the Offering or in the
aftermarket (and solely with respect to such Subunits).
EarlyBirdCapital,
Inc.
____________,
2010
Page 3 of
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1.2.
Over-Allotment
Option
1.2.1.
The Underwriter shall have the option (the “Over-Allotment Option”) to
purchase all or less than all of the additional 375,000 units (the “Option Units”) for the
purposes of covering any over-allotments in connection with the distribution and
sale of the Firm Units. Such Option Units shall be identical in all
respects to the Firm Units. The Firm Units and the Option Units are
hereinafter collectively referred to as the “Units,” and the Units, the
Subunits, the Ordinary Shares and the Warrants included in the Units and the
Ordinary Shares issuable upon exercise of the Warrants are hereinafter referred
to collectively as the “Public
Securities.” No Option Units shall be sold or delivered unless the
Firm Units previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Units, or any portion thereof,
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by the Underwriter to
the Company. The purchase price to be paid for each Option Unit (net of
discounts and commissions) will be $5.79 per Option Unit.
1.2.2.
Exercise of
Option. The Over-Allotment Option granted pursuant to Section 1.2.1
hereof may be exercised by the Underwriter as to all (at any time) or any part
(from time to time) of the Option Units within 45 days after the Effective
Date. The Underwriter will not be under any obligation to purchase any
Option Units prior to the exercise of the Over-Allotment Option. The
Over-allotment Option granted hereby may be exercised by the giving of oral
notice to the Company by the Underwriter, which must be confirmed in accordance
with Section 10.1 herein setting forth the number of Option Units to be
purchased and the date and time for delivery of and payment for the Option Units
(the “Option Closing
Date”), which will not be later than five (5) full Business Days after
the date of the notice or such other time as shall be agreed upon by the Company
and the Underwriter, at the offices of the Underwriter or at such other place as
shall be agreed upon by the Company and the Underwriter. Upon exercise of
the Over-Allotment Option, the Company will become obligated to convey to the
Underwriter, and, subject to the terms and conditions set forth herein, the
Underwriter will become obligated to purchase, the number of Option Units
specified in such notice.
1.2.3.
Payment and
Delivery. Payment for the Option Units shall be made on the Option
Closing Date at the Underwriter’s election by wire transfer in Federal (same
day) funds or by certified or bank cashier’s check(s) in New York Clearing House
funds, payable as follows: $5.79 per Option Unit shall be deposited
in the Trust Fund pursuant to the Trust Agreement upon delivery to you of
certificates (in form and substance satisfactory to the Underwriter)
representing the Option Units (or through the facilities of DTC) for the account
of the Underwriter). The certificates representing the Option Units to be
delivered will be in such denominations and registered in such names as the
Underwriter requests not less than two full business days prior to the Closing
Date or the Option Closing Date, as the case may be, and will be made available
to the Underwriter for inspection, checking and packaging not less than one full
business day prior to such Closing Date.
EarlyBirdCapital,
Inc.
____________,
2010
Page 4 of
41
1.3.
Underwriter’s Purchase
Option. The Company hereby agrees to issue and sell to the
Underwriter (and/or its designees) on the Closing Date an option (“Underwriter’s Purchase
Option”) to purchase up to an aggregate of 175,000 units (the “Underwriter’s Units”) for an
aggregate purchase price of $100.00. The Underwriter’s Purchase Option
shall be exercisable whether for cash or on a cashless basis, in whole or in
part, commencing on the later of the consummation of a Business Combination or
one year from the Effective Date and expiring on the five-year anniversary of
the Effective Date at an initial exercise price per Underwriter’s Unit of $6.60,
which is equal to one hundred ten percent (110%) of the initial public offering
price of a Unit. Delivery and payment for the Underwriter’s Purchase
Option shall be made on the Closing Date.On the Closing Date, the Company shall
deliver to the Underwriter, upon payment therefor, the Underwriter’s Purchase
Option in the name or names and in such denominations as the Underwriter may
request. The Underwriter’s Purchase Option, the Underwriter’s Units, the
Subunits (the “Underwriter’s
Subunits”), the Ordinary Shares (the “Underwriter’s Shares”) and the
Warrants (the “Underwriter’s
Warrants”) included in the Underwriter’s Units and the Ordinary Shares
issuable upon exercise of the Underwriter’s Warrants are hereinafter referred to
collectively as the “Underwriter’s
Securities.” The Public Securities and the Underwriter’s
Securities are hereinafter referred to collectively as the “Securities.”
1.4.
Private
Placements.
1.4.1.
The Company issued to certain persons and entities
referenced in Part II, Item 15 of the Registration Statement (collectively, the
“Initial Shareholders”),
for aggregate consideration of $25,000, 718,750 Ordinary Shares (the “Insider Shares”) in a private
placement intended to be exempt from registration under Section 4(2) of the
Securities Act of 1933, as amended (the “Act”). No underwriting
discounts, commissions or placement fees have been or will be payable in
connection with the sale of the Insider Shares. Except for certain limited
exceptions, the Insider Shares may not be sold, assigned or transferred by the
Initial Shareholders until the one-year anniversary of the consummation of
the Business Combination or the liquidation of the Trust Account if the Company
is unable to consummate a Business Combination by the Termination Date.
The Initial Shareholders shall have no right to any distributions from the Trust
Account with respect to any portion of the Insider Shares in the event the
Company fails to consummate a Business Combination. The Initial
Shareholders shall not have redemption rights with respect to the Insider Shares
(whether the Company engages in a proxy solicitation to approve a Business
Combination or whether the Company engages in a tender offer).
EarlyBirdCapital,
Inc.
____________,
2010
Page 5 of
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1.4.2.
Simultaneously with the Closing Date, the directors of
the Company (collectively, the “Insider Investors”) will
purchase from the Company pursuant to Subscription Agreements (as defined in
Section 2.25.2 hereof) an aggregate of 1,500,000 warrants (the “Insider Warrants”) at a
purchase price of $0.35 per Insider Warrant in a private placement (the “Insider Private Placement”) intended to
be exempt from registration under the Act. The Insider Warrants and
Ordinary Shares issuable upon exercise of the Insider Warrants are hereinafter
referred to collectively as the “Insider
Securities.” No underwriting discounts, commissions or
placement fees have been or will be payable in connection with the Insider
Private Placement. None of the Insider Securities may be sold, assigned or
transferred by the Insider Investors until the consummation of a Business
Combination or the liquidation of the Trust Account if the Company is unable to
consummate a Business Combination by the Termination Date.
1.4.3.
Simultaneously with the Closing Date, the Underwriter
and/or its designees (collectively, the “EBC Investors”) will purchase from
the Company pursuant to Subscription Agreements an aggregate of 1,142,857
warrants (the “EBC
Warrants”) at a purchase price of $0.35 per EBC Warrant in a private
placement (the “EBC
Private
Placement” and together with the Insider Private Placement, the “Private Placements”) intended
to be exempt from registration under the Act. The EBC Warrants and
Ordinary Shares issuable upon exercise of the EBC Warrants are hereinafter
referred to collectively as the “EBC Securities.” No
underwriting discounts, commissions or placement fees have been or will be
payable in connection with the EBC Private Placement. None of the EBC
Securities may be sold, assigned or transferred by the EBC Investors until the
consummation of a Business Combination or the liquidation of the Trust Account
if the Company is unable to consummate a Business Combination by the Termination
Date.
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1.5.
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Working
Capital; Trust Account
Proceeds.
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1.5.1.
Working
Capital. Upon consummation of the Offering, $150,000 of the
offering proceeds will be released to the Company to fund the working capital
requirements of the Company.
1.5.2.
Trust Account
Proceeds. Prior to the liquidation of the Trust Account in the event the
Company has not completed a Business Combination by the Termination Date, funds
may be released to the Company from the Trust Account in accordance with the
Trust Agreement to (i) purchase Subunits, (ii) pay any taxes incurred by the
Company and (iii) to fund the Company’s working capital and general corporate
requirements, all as more fully described in the Prospectus.
2.
Representations and
Warranties of the Company. The Company represents and warrants to
the Underwriter as follows:
2.1.
Filing of Registration
Statement.
EarlyBirdCapital,
Inc.
____________,
2010
Page 6 of
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2.1.1.
Pursuant to the
Act. The Company has filed with the Commission a registration
statement and an amendment or amendments thereto, on Form S-1 (File No.
333-170006), including any related preliminary prospectus (the “Preliminary Prospectus”,
including any prospectus that is included in the Registration Statement
immediately prior to the effectiveness of the Registration Statement), for the
registration of the Public Securities and the Underwriter’s Securities under the
Act, which registration statement and amendment or amendments have been prepared
by the Company in conformity with the requirements of the Act, and the rules and
regulations (the “Regulations”) of the
Commission under the Act. Except as the context may otherwise require,
such registration statement, as amended, on file with the Commission at the time
the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as a
part thereof or incorporated therein and all information deemed to be a part
thereof as of such time pursuant to Rule 430A of the Regulations), is
hereinafter called the “Registration Statement,” and
the form of the final prospectus dated the Effective Date included in the
Registration Statement (or, if applicable, the form of final prospectus
containing information permitted to be omitted at the time of effectiveness by
Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of
the Regulations), is hereinafter called the “Prospectus.” For
purposes of this Agreement, “Time of Sale”, as used in the
Act, means 5:00 p.m., New York City time, on the date of this Agreement.
Prior to the Time of Sale, the Company prepared preliminary prospectuses, dated
__________, 2010, for distribution by the Underwriter (together the “Statutory Prospectus”).
If the Company has filed, or is required pursuant to the terms hereof to file, a
registration statement pursuant to Rule 462(b) under the Act registering
additional Securities of any type (a “Rule 462(b) Registration
Statement”), then, unless otherwise specified, any reference herein to
the term “Registration
Statement” shall be deemed to include such Rule 462(b) Registration
Statement. Other than a Rule 462(b) Registration Statement, which, if
filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All
of the Public Securities have been registered under the Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Securities Act with the filing of such Rule
462(b) Registration Statement. The Registration Statement has been
declared effective by the Commission on the date hereof. If, subsequent to
the date of this Agreement, the Company or the Underwriter has determined
that at the Time of Sale the Statutory Prospectus included an untrue statement
of a material fact or omitted a statement of material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and have agreed to provide an opportunity to purchasers of
the Firm Units to terminate their old purchase contracts and enter into new
purchase contracts, then the Statutory Prospectus will be deemed to include any
additional information available to purchasers at the time of entry into the
first such new purchase contract.
2.1.2.
Pursuant to the Exchange
Act. The Company has filed with the Commission a Registration
Statement on Form 8-A (File Number 000-______) providing for the registration
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Units,
the Subunits, the Ordinary Shares and the Warrants. The registration of
the Units, Subunits, Ordinary Shares and Warrants under the Exchange Act has
been declared effective by the Commission on the date hereof.
2.2.
No Stop Orders,
etc. Neither the Commission nor, to the Company’s knowledge, any
foreign or state regulatory authority has issued any order or threatened to
issue any order preventing or suspending the use of any Statutory Prospectus or
Prospectus or has instituted or, to the best of the Company’s knowledge,
threatened to institute any proceedings with respect to such an
order.
EarlyBirdCapital,
Inc.
____________,
2010
Page 7 of
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2.3.
Disclosures in Registration
Statement.
2.3.1.
10b-5
Representation. At the time of effectiveness of the Registration
Statement (or at the time any post-effective amendment to the Registration
Statement) and at all times subsequent thereto up to the Closing Date, the
Registration Statement, the Statutory Prospectus and the Prospectus contained or
will contain all material statements that are required to be stated therein in
accordance with the Act and the Regulations, and did or will, in all material
respects, conform to the requirements of the Act and the Regulations. On
the Effective Date and at the Time of Sale, the Registration Statement did not,
and on the Closing Date it will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not include any untrue statement of
a material fact or 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 at the Time of Sale, the Statutory Prospectus does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
representation and warranty made in this Section 2.3.1 does not apply to
statements made or statements omitted in reliance upon and in conformity with
written information furnished to the Company with respect to the Underwriter by
the Underwriter expressly for use in the Registration Statement, the Statutory
Prospectus or Prospectus or any amendment thereof or supplement thereto, which
information, it is agreed, shall consist solely of the subsection captioned
“Pricing of Securities.”
2.3.2.
Disclosure of
Agreements. The agreements and documents described in the
Registration Statement, the Statutory Prospectus and the Prospectus conform to
the descriptions thereof contained therein and there are no agreements or other
documents required to be described in the Registration Statement, the Statutory
Prospectus or the Prospectus or to be filed with the Commission as exhibits to
the Registration Statement, that have not been so described or filed. Each
agreement or other instrument (however characterized or described) to which the
Company is a party or by which its property or business is or may be bound or
affected and (i) that is referred to in the Registration Statement or attached
as an exhibit thereto, or (ii) is material to the Company’s business, has been
duly and validly executed by the Company, is in full force and effect in all
material respects and is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms, except (x)
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally, (y) as enforceability of
any indemnification or contribution provision may be limited under the foreign,
federal and state securities laws, and (z) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and none of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the Company’s
knowledge, any other party is in breach or default thereunder and, to the
Company’s knowledge, no event has occurred that, with the lapse of time or the
giving of notice, or both, would constitute a breach or default
thereunder. To the Company’s knowledge, performance by the Company of the
material provisions of such agreements or instruments will not result in a
violation of any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its assets or businesses, including,
without limitation, those relating to environmental laws and
regulations.
EarlyBirdCapital,
Inc.
____________,
2010
Page 8 of
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2.3.3.
Prior Securities
Transactions. No securities of the Company have been sold by the
Company or by or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company since the
date of the Company’s formation, except as disclosed in the Registration
Statement.
2.3.4.
Regulations.
The disclosures in the Registration Statement, the Statutory Prospectus and the
Prospectus concerning the effects of foreign, federal, state and local
regulation on the Company’s business as currently contemplated are correct in
all material respects and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading.
2.4. Changes After Dates in
Registration Statement.
2.4.1.
No Material Adverse
Change. Since the respective dates as of which information is given
in the Registration Statement, the Statutory Prospectus and the Prospectus,
except as otherwise specifically stated therein: (i) there has been no material
adverse change in the condition, financial or otherwise, or business prospects
of the Company; (ii) there have been no material transactions entered into by
the Company, other than as contemplated pursuant to this Agreement; (iii) no
member of the Company’s board of directors or management has resigned from any
position with the Company and (iv) no event or occurrence has taken place which
materially impairs, or would likely materially impair, with the passage of time,
the ability of the members of the Company’s board of directors or management to
act in their capacities with the Company as described in the Registration
Statement, the Statutory Prospectus and the Prospectus.
2.4.2.
Recent Securities
Transactions, etc. Subsequent to the respective dates as of which
information is given in the Registration Statement, the Statutory Prospectus and
the Prospectus and except as may otherwise be indicated or contemplated herein
or therein, the Company has not: (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money; or
(ii) declared or paid any dividend or made any other distribution on or in
respect to its capital stock.
EarlyBirdCapital,
Inc.
____________,
2010
Page 9 of
41
2.5.
Independent
Accountants. ▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇”), whose report is
filed with the Commission as part of the Registration Statement and included in
the Registration Statement, the Statutory Prospectus and the Prospectus, are
independent registered public accountants as required by the Act, the
Regulations and the Public Company Accounting Oversight Board (the “PCAOB”), including the rules
and regulations promulgated by such entity. To the Company’s knowledge,
▇▇▇▇▇▇ is duly registered and in good standing with the PCAOB. ▇▇▇▇▇▇ has
not, during the periods covered by the financial statements included in the
Registration Statement, the Statutory Prospectus and the Prospectus, provided to
the Company any non-audit services, as such term is used in Section 10A(g)
of the Exchange Act.
2.6.
Financial Statements;
Statistical Data.
2.6.1.
Financial
Statements. The financial statements, including the notes thereto
and supporting schedules included in the Registration Statement, the Statutory
Prospectus and the Prospectus, fairly present the financial position and the
results of operations of the Company at the dates and for the periods to which
they apply; and such financial statements have been prepared in conformity with
United States generally accepted accounting principles, consistently applied
throughout the periods involved; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein in conformity with the Regulations. No other financial statements
or supporting schedules are required to be included or incorporated by reference
in the Registration Statement, the Statutory Prospectus or the Prospectus.
The Registration Statement, the Statutory Prospectus and the Prospectus disclose
all material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), and other relationships of the Company with
unconsolidated entities or other persons that may have a material current or
future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses. There are no
pro forma or as adjusted financial statements which are required to be included
in the Registration Statement, the Statutory Prospectus or the Prospectus in
accordance with Regulation S-X of the Regulations which have not been included
as so required.
2.6.2.
Statistical
Data. The statistical, industry-related and market-related data
included in the Registration Statement, the Statutory Prospectus and/or the
Prospectus are based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data agree with the
sources from which they are derived.
2.7.
Authorized Capital; Options,
etc. The Company had at the date or dates indicated in each of the
Registration Statement, the Statutory Prospectus and the Prospectus, as the case
may be, duly authorized, issued and outstanding capitalization as set forth in
the Registration Statement, the Statutory Prospectus and the Prospectus.
Based on the assumptions stated in the Registration Statement, the Statutory
Prospectus and the Prospectus, the Company will have on the Closing Date the
adjusted stock capitalization set forth therein. Except as set forth in,
or contemplated by, the Registration Statement, the Statutory Prospectus and the
Prospectus, on the Effective Date and on the Closing Date, there will be no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued Ordinary Shares or any security convertible into
Ordinary Shares, or any contracts or commitments to issue or sell Ordinary
Shares or any such options, warrants, rights or convertible
securities.
EarlyBirdCapital,
Inc.
____________,
2010
Page 10
of 41
2.8.
Valid Issuance of
Securities, etc.
2.8.1.
Outstanding
Securities. All issued and outstanding Ordinary Shares of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; the holders thereof have no rights of rescission with respect
thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company. The outstanding Ordinary Shares conform to
the descriptions thereof contained in the Registration Statement, the Statutory
Prospectus and the Prospectus. All offers, sales and any transfers of the
outstanding Ordinary Shares of the Company were at all relevant times either
registered under the Act and the applicable state securities or Blue Sky laws or
exempt from such registration requirements.
2.8.2.
Securities Sold Pursuant to
this Agreement. The Securities have been duly authorized and
reserved for issuance and when issued and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable; the holders
thereof are not and will not be subject to personal liability by reason of being
such holders; the Securities are not and will not be subject to the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company; and all corporate action required to be taken for
the authorization, issuance and sale of the Securities has been duly and validly
taken. The Securities conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Statutory Prospectus and
the Prospectus, as the case may be. When issued, the Underwriter’s
Purchase Option, the Underwriter’s Warrants, the Insider Warrants, the EBC
Warrants and the Warrants will constitute valid and binding obligations of the
Company to issue and sell, upon exercise thereof and payment of the respective
exercise prices therefor, the number and type of securities of the Company
called for thereby in accordance with the terms thereof and such Underwriter’s
Purchase Option, Underwriter’s Warrants, Insider Warrants, the EBC Warrants and
Warrants are enforceable against the Company in accordance with their respective
terms, except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under foreign, federal and state securities laws; and
(iii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. The
Ordinary Shares issuable upon exercise of the Underwriter’s Purchase Option, the
Underwriter’s Warrants, the Insider Warrants, the EBC Warrants and the Warrants
have been reserved for issuance upon the exercise of the Warrant upon payment of
the consideration therefore, and when issued in accordance with the terms
thereof, will be duly and validly authorized, validly issued, fully paid and
non-assessable; the holders thereof are not and will not be subject to personal
liability by reason of being such holders.
2.8.3.
No Integration.
Neither the Company nor any of its affiliates has, prior to the date hereof,
made any offer or sale of any securities which are required to be “integrated”
pursuant to the Act or the Regulations with the offer and sale of the Securities
pursuant to the Registration Statement.
EarlyBirdCapital,
Inc.
____________,
2010
Page 11
of 41
2.9.
Registration Rights of Third
Parties. Except as set forth in the Registration Statement, the
Statutory Prospectus and the Prospectus, no holders of any securities of the
Company or any rights exercisable for or convertible or exchangeable into
securities of the Company have the right to require the Company to register any
such securities of the Company under the Act or to include any such securities
in a registration statement to be filed by the Company.
2.10.
Validity and Binding Effect
of Agreements. This Agreement, the Warrant Agreement (as defined in
Section 2.24 hereof), the Trust Agreement, the Subscription Agreements (as
defined in Section 2.25.2 hereof), the Services Agreement (as defined in Section
2.25.5), the Underwriter’s Purchase Option, the Escrow Agreement (as defined in
Section 2.25.3 hereof), the Registration Rights Agreement (as defined in
Section 2.25.7) and the Plan (as defined in Section 3.31) have been duly and
validly authorized by the Company and, when executed and delivered by the
Company and will constitute valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under foreign, federal and state securities laws; and (iii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
2.11.
No Conflicts,
etc. The execution, delivery, and performance by the Company of
this Agreement, the Warrant Agreement, the Trust Agreement, the Subscription
Agreements, the Services Agreement, the Underwriter’s Purchase Option, the
Escrow Agreement, the Registration Rights Agreement and the Plan, the
consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not and
will not, with or without the giving of notice or the lapse of time or both: (i)
result in a breach or violation of, or conflict with any of the terms and
provisions of, or constitute a default under, or result in the creation,
modification, termination or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to the terms of any agreement,
obligation, condition, covenant or instrument to which the Company is a party or
bound or to which its property is subject except pursuant to the Trust
Agreement; (ii) result in any violation of the provisions of the Amended and
Restated Memorandum and Articles of Association of the Company; or (iii) violate
any existing applicable statute, law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties, business or
assets.
EarlyBirdCapital,
Inc.
____________,
2010
Page 12
of 41
2.12.
No Defaults;
Violations. No material default or violation exists in the due
performance and observance of any term, covenant or condition of any material
license, contract, indenture, mortgage, deed of trust, note, loan or credit
agreement, or any other agreement or instrument evidencing an obligation for
borrowed money, or any other material agreement or instrument to which the
Company is a party or by which the Company may be bound or to which any of the
properties or assets of the Company is subject. The Company is not in violation
of any term or provision of its Amended and Restated Memorandum and Articles of
Association or in violation of any material franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any of
its properties or businesses.
2.13.
Corporate Power; Licenses;
Consents.
2.13.1.
Conduct of
Business. The Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials and
bodies that it needs as of the date hereof to conduct its business for the
purposes described in the Registration Statement, the Statutory Prospectus and
the Prospectus. The disclosures in the Registration Statement, the
Statutory Prospectus and the Prospectus concerning the effects of foreign,
federal, state and local regulation on this Offering and the Company’s business
purpose as currently contemplated are correct in all material respects and do
not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Since its formation, the Company has
conducted no business and has incurred no liabilities other than in connection
with and in furtherance of the Offering.
2.13.2.
Transactions Contemplated
Herein. The Company has all corporate power and authority to enter
into this Agreement and to carry out the provisions and conditions hereof, and
all consents, authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or order of, and
no filing with, any court, government agency or other body, foreign or domestic,
is required for the valid issuance, sale and delivery, of the Securities and the
consummation of the transactions and agreements contemplated by this Agreement,
the Warrant Agreement, the Trust Agreement, the Subscription Agreements, the
Services Agreement, the Underwriter’s Purchase Option, the Registration Rights
Agreement, the Plan, and the Escrow Agreement and as contemplated by the
Registration Statement, the Statutory Prospectus and Prospectus, except with
respect to applicable foreign, federal and state securities laws and the rules
and regulations promulgated by the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
2.14.
D&O
Questionnaires. To the Company’s knowledge, all information
contained in the questionnaires (the “Questionnaires”) completed by
each of the Company’s officers and directors (the “Directors/Officers”)
immediately prior to the Offering and provided to the Underwriter, as such
Questionnaires may have been updated from time to time and confirmed by each of
the Directors/Officers, as well as the biographies attached as exhibits to each
person’s Insider Letter (as defined in Section 2.25.1), is true and correct
and the Company has not become aware of any information which would cause the
information disclosed in the Questionnaires to become inaccurate and
incorrect.
EarlyBirdCapital,
Inc.
____________,
2010
Page 13
of 41
2.15.
Litigation; Governmental
Proceedings. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental proceeding pending or, to
the Company’s knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any of the Directors/Officers or any of the Initial
Shareholders, which has not been disclosed in the Registration Statement, the
Questionnaires, the Statutory Prospectus and the Prospectus.
2.16.
Good Standing.
The Company has been duly organized and is validly existing as a corporation and
is in good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the conduct
of business requires such qualification, except where the failure to qualify
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company, whether
or not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Statutory Prospectus and the Prospectus
(exclusive of any supplement thereto) (a “Material Adverse
Effect”).
2.17.
No Contemplation of a
Business Combination. Prior to the date hereof, no Company
Affiliate (as hereinafter defined) has, and as of the Closing, the Company and
such Company Affiliates will not have: (a) had any specific Business Combination
under consideration or contemplation; (b) directly or indirectly, contacted any
potential operating assets, business or businesses which the Company may seek to
acquire (each, a “Target
Business”) or any owner, officer, director, manager, agent or
representative thereof or had any substantive discussions, formal or otherwise,
with respect to effecting any potential Business Combination with the Company or
taken any measure, directly or indirectly to locate a Target Business; or (c)
engaged or retained any agent or other representative to identify or locate any
Target Business for the Company.
2.18.
Transactions Affecting
Disclosure to FINRA.
2.18.1.
Except as described in the Registration Statement, the Statutory
Prospectus and the Prospectus, there are no claims, payments, arrangements,
agreements or understandings relating to the payment of a finder’s, consulting
or origination fee by the Company or any Company Affiliate 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
Shareholder that may affect the Underwriters’ compensation, as determined by
FINRA.
2.18.2.
The Company has not made any direct or indirect payments (in cash,
securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee
or otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital to the
Company; (ii) to any FINRA member; or (iii) to any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the
twelve months prior to the Effective Date, other than payments to the
Underwriter in connection with the Offering.
EarlyBirdCapital,
Inc.
____________,
2010
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2.18.3.
To the Company’s knowledge, no officer or director or any direct or
indirect beneficial owner of any class of the Company’s securities, including
the Initial Shareholders and holders of securities to be purchased in the
Insider Private Placement but excluding the EBC Investors (whether debt or
equity, registered or unregistered, regardless of the time acquired or the
source from which derived) (any such individual or entity, a “Company Affiliate”) is a
member, a person associated, or affiliated with a member of FINRA.
2.18.4.
To the Company’s knowledge, no Company Affiliate is an owner of
stock or other securities of any member of FINRA (other than securities
purchased on the open market).
2.18.5.
To the Company’s knowledge, no Company Affiliate has made a
subordinated loan to any member of FINRA.
2.18.6.
No proceeds from the sale of the Public Securities (excluding
underwriting compensation), the Underwriter’s Securities, the Insider
Securities, the EBC Securities or the Insider Shares will be paid to any FINRA
member, or any persons associated or affiliated with a member of FINRA, except
as specifically authorized herein.
2.18.7.
Except as contemplated herein with respect to the Underwriter’s
Purchase Option and the EBC Warrants, the Company has not issued any warrants or
other securities, or granted any options, directly or indirectly to anyone who
is a potential underwriter in the Offering or a related person (as defined by
FINRA rules) of such an underwriter within the 180-day period prior to the
initial filing date of the Registration Statement.
2.18.8.
To the Company’s knowledge no person to whom securities of the
Company have been privately issued within the 180-day period prior to the
initial filing date of the Registration Statement has any relationship or
affiliation or association with any member of FINRA.
2.18.9.
To the Company’s knowledge, no FINRA member intending to participate
in the Offering has a conflict of interest (as defined by FINRA rules) with the
Company.
2.18.10.
Except with respect to the Underwriter and/or its designees in connection with
the Offering, the Company has not entered into any agreement or arrangement
(including, without limitation, any consulting agreement or any other type of
agreement) during the 180-day period prior to the initial filing date of the
Registration Statement, which arrangement or agreement provides for the receipt
of any item of value and/or the transfer or issuance of any warrants, options,
or other securities from the Company to a FINRA member, any person associated
with a member (as defined by FINRA rules), any potential underwriters in the
Offering and/or any related persons.
EarlyBirdCapital,
Inc.
____________,
2010
Page 15
of 41
2.19.
Taxes.
2.19.1.
There are no transfer taxes or other similar fees or charges under
Cayman Islands law, U.S. federal law or the laws of any U.S. state or any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by the Company
of the Securities.
2.19.2.
The Company has filed all non-U.S., U.S. federal, state and local
tax returns that are required to be a filed or has requested extensions thereof,
except in any case in which the failure to so file would not have a Material
Adverse Effect, and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing in due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not have a Material
Adverse Effect.
2.19.3.
The Company is not a Passive Foreign Investment Company for Federal
income tax purposes.
2.20.
Foreign Corrupt Practices
Act. Neither the Company nor any of the Company Affiliates or any
other person acting on behalf of the Company is aware of or has taken any
action, directly or indirectly, that: (i) would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”) or otherwise subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding; (ii) if not done in the past, might have had a
Material Adverse Effect or (iii) if not continued in the future, might adversely
affect the assets, business or operations of the Company, including, without
limitation, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business) to
any customer, supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic
or foreign) or any political party or candidate for office (domestic or foreign)
or other person who was, is, or may be in a position to help or hinder the
business of the Company (or assist it in connection with any actual or proposed
transaction). The Company’s internal accounting controls and procedures
are sufficient to cause the Company to comply with the Foreign Corrupt Practices
Act of 1977, as amended.
2.21.
Currency and Foreign
Transactions Reporting Act. The operations of the Company are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transaction
Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (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 best knowledge of the Company,
threatened.
EarlyBirdCapital,
Inc.
____________,
2010
Page 16
of 41
2.22.
Bank Secrecy Act; Money
Laundering; Patriot Act. Neither the Company nor to the Company’s
knowledge, any Company Affiliate, has violated: (i) the Bank Secrecy Act, as
amended, (ii) the Money Laundering Laws or (iii) the Uniting and Strengthening
of America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations
promulgated under any such law, or any successor law.
2.23.
Officers’
Certificate. Any certificate signed by any duly authorized officer
of the Company and delivered to the Underwriter or to its counsel shall be
deemed a representation and warranty by the Company to the Underwriter as to the
matters covered thereby.
2.24.
Warrant
Agreement. The Company has entered into a warrant agreement with
respect to the Warrants, Underwriters’ Warrants, the Insider Warrants and the
EBC Warrants with CST&T substantially in the form filed as an exhibit to the
Registration Statement (the “Warrant
Agreement”).
2.25.
Agreements With Company
Affiliates.
2.25.1.
Insider
Letters. The Company has caused to be duly executed legally binding
and enforceable agreements (except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (ii) as enforceability of any indemnification, contribution or
non-compete provision may be limited under foreign, federal and state securities
laws, and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
annexed as exhibits to the Registration Statement (the “Insider Letters”), pursuant to
which each of the Company Affiliates agrees to certain matters, including but
not limited to, the voting of Ordinary Shares held by them and
certain matters described as being agreed to by them under the “Proposed
Business” section of the Registration Statement, the Statutory Prospectus
and Prospectus.
2.25.2.
Subscription
Agreements. The Insider Investors and the EBC Investors have
executed and delivered subscription agreements, the form of which is annexed as
an exhibit to the Registration Statement (the “Subscription Agreements”),
pursuant to which the Insider Investors and EBC Investors have agreed, among
other things, to purchase on the Closing Date an aggregate of 1,500,000 Insider
Warrants and 1,142,857 EBC Warrants, respectively, in the Private
Placements. Pursuant to the Subscription Agreements, the Insider Investors
and EBC Investors have waived any and all rights and claims they may have to any
proceeds, and any interest thereon, held in the Trust Account in respect of the
Insider Securities and EBC Securities in the event that a Business Combination
is not consummated and the Trust Account is liquidated in accordance with the
terms of the Trust Agreement. The Insider Securities and EBC Securities
have been duly authorized and, when issued and paid for in accordance with the
Subscription Agreements, will be validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal liability by
reason of being such holders; the Insider Securities and EBC Securities are not
and will not be subject to the preemptive rights of any holders of any security
of the Company or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization, issuance and sale
of the Insider Securities and EBC Securities has been duly and validly
taken.
EarlyBirdCapital,
Inc.
____________,
2010
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of 41
2.25.3.
Escrow
Agreement. The Company has caused the Initial Shareholders to enter
into an escrow agreement (the “Escrow Agreement”) with
CST&T substantially in the form filed as an exhibit to the Registration
Statement whereby the Insider Shares owned by such parties prior to the Offering
will be held in escrow by CST&T for a period (the “Escrow Period”) commencing on
the Effective Date and expiring one year after the consummation of the Business
Combination or earlier upon the liquidation of the Trust Account if the Company
is unable to consummate a Business Combination by the Termination Date.
During the Escrow Period, such parties shall be prohibited from selling or
otherwise transferring such Insider Shares, except in certain limited
circumstances set forth in the Escrow Agreement. To the Company’s
knowledge, the Escrow Agreement is enforceable against each of the Initial
Shareholders and will not, with or without the giving of notice or the lapse of
time or both, result in a breach of, or conflict with, any of the terms and
provisions of, or constitute a default under, an agreement or instrument to
which any of the Initial Shareholders is a party. The Escrow Agreement
shall not be amended, modified or otherwise changed without the prior written
consent of the Underwriter, such consent not to be unreasonably
withheld.
2.25.4.
Non-Competition/Solicitation.
No Directors/Officers are subject to any non-competition agreement or
non-solicitation agreement with any employer or prior employer which could
materially affect each Director’s/Officer’s ability to be and act in the
capacity of a Director/Officer of the Company.
2.25.5.
Administrative
Services. The Company has entered into an agreement (“Services Agreement”) with
______________ (“Affiliate”) substantially in
the form annexed as an exhibit to the Registration Statement pursuant to which
the Affiliate will make available to the Company general and administrative
services including office space, utilities and secretarial support for the
Company’s use for $7,500 per month.
2.25.6.
Loans. The
Initial Shareholders have made loans to the Company in the aggregate amount of
$_______ (the “Insider
Loans”) pursuant to a promissory note substantially in the form annexed
as an exhibit to the Registration Statement. The Insider Loans do not bear
any interest and are repayable by the Company on the consummation of the
Offering.
2.25.7.
Registration Rights
Agreement. The Company, the Initial Shareholders, the Insider Investors
and the EBC Investors have entered into a registration rights agreement (“Registration Rights
Agreement”) substantially in the form annexed as an exhibit to the
Registration Statement, whereby such parties will be entitled to certain
registration rights as set forth in such Registration Rights Agreement and
described more fully in the Registration Statement.
EarlyBirdCapital,
Inc.
____________,
2010
Page 18
of 41
2.26.
Investment Management Trust
Agreement. The Company has entered into the Trust Agreement with
respect to certain proceeds of the Offering and the Private Placements
substantially in the form filed as an exhibit to the Registration Statement,
pursuant to which the funds held in the Trust Account may be released under
limited circumstances.
2.27.
Investments. No
more than 45% of the “value” (as defined in Section 2(a)(41) of the
Investment Company Act of 1940 (“Investment Company Act”)) of
the Company’s total assets (exclusive of cash items and “Government Securities,”
as defined in Section 2(a)(16) of the Investment Company Act) consist of, and no
more than 45% of the Company’s net income after taxes is derived from,
securities other than Government Securities.
2.28.
Investment Company
Act. The Company is not required, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act.
2.29.
Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.30.
Related Party
Transactions. No relationship, direct or indirect, exists between
or among any of the Company or any Company Affiliate, on the one hand, and any
director, officer, shareholder, customer or supplier of the Company or any
Company Affiliate, on the other hand, which is required by the Act, the Exchange
Act or the Regulations to be described in the Registration Statement, the
Statutory Prospectus and the Prospectus which is not so described as
required. There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as
disclosed in the Registration Statement, the Statutory Prospectus and the
Prospectus. The Company has not extended or maintained credit, arranged
for the extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or officer of the Company.
2.31.
No Influence.
The Company has not offered, or caused the Underwriters to offer, the Firm Units
to any person or entity with the intention of unlawfully influencing: (a) a
customer or supplier of the Company or any affiliate of the Company to alter the
customer’s or supplier’s level or type of business with the Company or such
affiliate or (b) a journalist or publication to write or publish favorable
information about the Company or any such affiliate.
EarlyBirdCapital,
Inc.
____________,
2010
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of 41
2.32.
▇▇▇▇▇▇▇▇-▇▇▇▇▇.
The Company is in material compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002, as amended (“SOX”), and the rules and
regulations promulgated thereunder and related or similar rules and regulations
promulgated by any governmental or self regulatory entity or agency, that are
applicable to it as of the date hereof.
2.33.
Quotation of the Public
Securities on the OTC Bulletin
Board. As of the Closing Date, the Public Securities will have been
authorized for quotation on the OTC Bulletin Board and, to the Company’s
knowledge, no proceedings have been instituted or threatened which would effect,
and no event or circumstance has occurred as of the Effective Date which is
reasonably likely to effect, the quotation of the Public Securities on the OTC
Bulletin Board.
2.34.
Definition of
“Knowledge”. As used in herein, the term “knowledge of the Company” (or
similar language) shall mean the knowledge of the Company’s Directors/Officers,
with the assumption that such officers and directors shall have made reasonable
and diligent inquiry of the matters presented.
3.
Covenants of the
Company. The Company covenants and agrees as follows:
3.1.
Amendments to Registration
Statement. The Company will deliver to the Underwriter, prior to
filing, any amendment or supplement to the Registration Statement or Prospectus
proposed to be filed after the Effective Date and shall not file any such
amendment or supplement to which the Underwriter shall reasonably object in
writing.
3.2.
Federal Securities
Laws.
3.2.1.
Compliance.
During the time when a prospectus is required to be delivered under the Act, the
Company will use all reasonable efforts to comply with all requirements imposed
upon it by the Act, the Regulations and the Exchange Act and by the regulations
under the Exchange Act, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If at any time
when a Prospectus relating to the Public Securities is required to be delivered
under the Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Underwriters, the
Statutory Prospectus and the Prospectus, as then amended or supplemented
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or if
it is necessary during such period to amend the Registration Statement or amend
or supplement the Statutory Prospectus and Prospectus to comply with the Act,
the Company will notify the Underwriter promptly and prepare and file with the
Commission, subject to Section 3.1 hereof, an appropriate amendment to the
Registration Statement or amendment or supplement to the Statutory Prospectus
and Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
3.2.2.
Filing of Final
Prospectus. The Company will file the Prospectus (in form and
substance satisfactory to the Underwriter) with the Commission pursuant to the
requirements of Rule 424 of the Regulations.
EarlyBirdCapital,
Inc.
____________,
2010
Page 20
of 41
3.2.3.
Exchange Act
Registration. For a period of five years from the Effective Date
(except in connection with a going private transaction), or until such earlier
time upon which the Trust Account is to be liquidated if a Business Combination
has not been consummated by the Termination Date, the Company will use its best
efforts to maintain the registration of the Units, Subunits (until the Subunits
separate upon consummation of a Business Combination), Ordinary Shares and
Warrants (in the case of the Units and the Warrants, until the Warrants expire
and are no longer exercisable or have been exercised in full) under the
provisions of the Exchange Act. The Company will not deregister the Units,
Subunits, Ordinary Shares or Warrants under the Exchange Act without the prior
written consent of the Underwriter.
3.2.4.
Exchange Act
Filings. From the Effective Date until the earlier of the Company’s
initial Business Combination, or the liquidation of the Trust Account if a
Business Combination is not consummated by the Termination Date, the Company
shall timely file with the Commission via the Electronic Data Gathering,
Analysis and Retrieval System (“▇▇▇▇▇”) such statements and
reports as are required to be filed by it.
3.2.5.
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance. As soon as it is legally required to do so, the Company
shall take all actions necessary to obtain and thereafter maintain material
compliance with each applicable provision of SOX and the rules and regulations
promulgated thereunder and related or similar rules and regulations promulgated
by any other governmental or self regulatory entity or agency with jurisdiction
over the Company.
3.3.
Blue Sky
Filing. Unless the Securities are listed or quoted, as the case may
be, on the New York Stock Exchange, the Nasdaq Stock Market or the NYSE Amex
(“AMEX”), the Company
will endeavor in good faith, in cooperation with the Underwriter, at or prior to
the time the Registration Statement becomes effective, to qualify the Public
Securities for offering and sale under the securities laws of such jurisdictions
as the Underwriter may reasonably designate, provided that no such qualification
shall be required in any jurisdiction where, as a result thereof, the Company
would be subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction. All blue sky work shall
be undertaken by counsel of the Underwriter’s choice. In each jurisdiction
where such qualification shall be effected, the Company will, unless the
Underwriter agrees that such action is not at the time necessary or advisable,
use all reasonable efforts to file and make such statements or reports at such
times as are or may be required by the laws of such
jurisdiction.
3.4.
Delivery of Materials to
Underwriters. The Company will deliver to each of the several
Underwriters, without charge and from time to time during the period when a
prospectus is required to be delivered under the Act or the Exchange Act, such
number of copies of each Statutory Prospectus, the Prospectus and all amendments
and supplements to such documents as such Underwriters may reasonably request
and, as soon as the Registration Statement or any amendment or supplement
thereto becomes effective, deliver to the Underwriter two manually executed
Registration Statements, including exhibits, and all post-effective amendments
thereto and copies of all exhibits filed therewith or incorporated therein by
reference and all manually executed consents of certified
experts.
EarlyBirdCapital,
Inc.
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2010
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3.5.
Effectiveness and Events
Requiring Notice to the Underwriter. The Company will use its best
efforts to cause the Registration Statement to remain effective and will notify
the Underwriter immediately and confirm the notice in writing: (i) of the
effectiveness of the Registration Statement and any amendment thereto; (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or any post-effective amendment thereto or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or of the initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any foreign or state securities commission of any
proceedings for the suspension of the qualification of the Public Securities for
offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose; (iv) of the mailing and delivery to the
Commission for filing of any amendment or supplement to the Registration
Statement or Prospectus; (v) of the receipt of any comments or request for any
additional information from the Commission; and (vi) of the happening of any
event during the period described in Section 3.4 hereof that, in the
judgment of the Company or its counsel, makes any statement of a material fact
made in the Registration Statement, the Statutory Prospectus or the Prospectus
untrue or that requires the making of any changes in the Registration Statement,
the Statutory Prospectus and Prospectus in order to make the statements therein,
(with respect to the Prospectus and the Statutory Prospectus and in light of the
circumstances under which they were made), not misleading. If the
Commission or any foreign or state securities commission shall enter a stop
order or suspend such qualification at any time, the Company will make every
reasonable effort to obtain promptly the lifting of such order.
3.6.
Review of Financial
Statements. Until the earlier of five years from the Effective
Date, or until the liquidation of the Trust Account if a Business Combination is
not consummated by the Termination Date, the Company, at its expense, shall
cause its regularly engaged independent certified public accountants to review
(but not audit) the Company’s financial statements for each of the first three
fiscal quarters prior to the announcement of quarterly financial information,
the filing of the Company’s Form 10-Q quarterly report and the mailing of
quarterly financial information to shareholders.
3.7.
Affiliated
Transactions.
3.7.1.
Business
Combinations. The Company will not consummate a Business
Combination with any entity which is affiliated with any Company Affiliate
unless the Company obtains an opinion from an independent investment banking
firm reasonably acceptable to the Underwriter that the Business Combination is
fair to the Company’s shareholders from a financial perspective.
3.7.2.
Services. The
Company has entered into the Services Agreement with Affiliate pursuant to which
the Affiliate will make available to the Company general and administrative
services including office space, utilities and secretarial support for the
Company’s use for $7,500 per month. The Company shall not enter into any
other arrangement for the provision of such services that will require the
Company to pay in excess of $7,500 per month for such services.
EarlyBirdCapital,
Inc.
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2010
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3.7.3.
Compensation.
Except as otherwise set forth in this Section 3.7, the Company shall not
pay any Initial Shareholder or Company Affiliate or any of their affiliates any
fees or compensation from the Company, for services rendered to the Company
prior to, or in connection with, this Offering or the consummation of a Business
Combination; provided
that payments may be made pursuant to the Services Agreement, the Insider
Loans may be repaid and the Company’s directors and officers shall be entitled
to reimbursement from the Company for their out-of-pocket expenses incurred on
the Company’s behalf, and other expenses incurred by them in connection with
seeking and consummating a Business Combination.
3.8.
Secondary Market Trading and
Standard & Poor’s. The Company will apply to be included in
Standard & Poor’s Daily News and Corporation Records Corporate Descriptions
for a period of five years from the consummation of a Business
Combination. Additionally, the Company shall take such steps as may be
necessary to obtain a secondary market trading exemption for the Company’s
securities in such jurisdictions as may be requested by the Underwriter;
provided, however, no qualification shall be required in any jurisdiction where,
as a result thereof, the Company would be subject to service of general process
or to taxation as a foreign corporation doing business in such
jurisdiction. The Company shall also take such other action as may be
reasonably requested by the Underwriter to obtain a secondary market trading
exemption in such other states as may be requested by the
Underwriter.
3.9.
Investor Relations
Firm. Promptly after the execution of a definitive agreement for a
Business Combination, the Company shall retain an investor relations firm with
the expertise necessary to assist the Company both before and after the
consummation of the Business Combination for a term to be agreed upon by the
Company and the Underwriter.
3.10.
Reports to the
Underwriter.
3.10.1.
Periodic
Reports, etc. For a period of five years from the Effective Date or
until such earlier time upon which the Company is required to be liquidated and
dissolved, the Company will furnish to the Underwriter and its counsel copies of
such financial statements and other periodic and special reports as the Company
from time to time furnishes generally to holders of any class of its securities,
and promptly furnish to the Underwriter: (i) a copy of each periodic report the
Company shall be required to file with the Commission; (ii) a copy of every
press release and every news item and article with respect to the Company
or its affairs which was released by the Company; (iii) a copy of each
Current Report on Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or
prepared by the Company; (iv) five copies of each registration statement filed
by the Company with the Commission under the Securities Act; and (v) such
additional documents and information with respect to the Company and the affairs
of any future subsidiaries of the Company as the Underwriter may from time to
time reasonably request; provided that the Underwriter shall sign, if requested
by the Company, a Regulation FD compliant confidentiality agreement which is
reasonably acceptable to the Underwriter and its counsel in connection with the
Underwriter’s receipt of such information. Documents filed with the
Commission pursuant to ▇▇▇▇▇ shall be deemed to have been delivered to the
Underwriter pursuant to this section.
EarlyBirdCapital,
Inc.
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2010
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3.10.2.
For a period of five years following the Effective Date or until the
Company’s earlier dissolution and liquidation, the Company shall retain a
transfer and warrant agent acceptable to the Underwriter. CST&T is
acceptable to the Underwriters.
3.10.3.
Secondary
Market Trading Survey. The Company shall engage ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(“GM”) for a one-time
fee of $5,000 payable on the Closing Date to deliver to and update the
Underwriter on a timely basis, but in any event on the Effective Date, a written
report detailing those states in which the Public Securities may be traded in
non-issuer transactions under the Blue Sky laws of the fifty States (the “Secondary Market Trading
Survey”).
3.11.
Disqualification of Form S-1
and S-3. Until the earlier of seven years from the
date hereof or until the Warrants have expired and are no longer exercisable,
the Company will not take any action or actions which may prevent or disqualify
the Company’s use of Form S-1 and S-3 (or other appropriate form) for the
registration of the Warrants under the Act.
3.12.
Payment of
Expenses. The Company hereby agrees to pay on each of the Closing
Date and the Option Closing Date, if any, to the extent not paid at Closing
Date, all fees and expenses incident to the performance of the obligations of
the Company under this Agreement, including, but not limited to: (i) the
preparation, printing, filing and mailing (including the payment of postage with
respect to such mailing) of the Registration Statement, the Statutory
Prospectus, and the final Prospectus and mailing of this Agreement and related
documents, including the cost of all copies thereof and any amendments thereof
or supplements thereto supplied to the Underwriters in quantities as may be
required by the Underwriters; (ii) the printing, engraving, issuance and
delivery of the Units, the Ordinary Shares and the Warrants included in the
Units, including any transfer or other taxes payable thereon; (iii) the
qualification of the Public Securities under state or foreign securities or Blue
Sky laws, including the costs of printing and mailing “Preliminary Blue Sky
Memorandum,” and all amendments and supplements thereto, fees and disbursements
for the Underwriter’s counsel retained for such purpose (such fees shall be
$15,000 in the aggregate (of which $7,500 has previously been paid)), and a
one-time fee of $5,000 payable to the Underwriter’s counsel for the preparation
of the Secondary Market Trading Survey; (iv) filing fees, costs and expenses
(including fees and disbursements of the Underwriter’s counsel) incurred in
registering the Offering with FINRA; (v) fees and disbursements of the transfer
and warrant agent; (vi) the preparation and delivery of transaction lucite cubes
or similar commemorative items in a style and quantity as reasonably requested
by the Underwriter; (vii) all costs and expenses of the Company associated with
“road show” marketing and “due diligence” trips for the Company’s management to
meet with prospective investors, including without limitation, all travel, food
and lodging expenses associated with such trips incurred by the Company or such
management; and (viii) all other costs and expenses customarily borne by an
issuer incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 3.12. The
Underwriter may deduct from the net proceeds of the Offering payable to the
Company on the Closing Date the expenses set forth above (which shall be
mutually agreed upon between the Company and the Underwriter prior to Closing)
to be paid by the Company to the Underwriter and others. If the Offering
is not consummated for any reason whatsoever, then the Company shall reimburse
the Underwriter in full for their respective out of pocket accountable expenses
actually incurred through such date, including, without limitation, fees of
counsel to the Underwriter (which legal fees shall not exceed
$75,000).
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Inc.
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2010
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3.13.
Right of First
Refusal. The Company hereby grants the Underwriter a right of first
refusal to act as co-manager for any public or private sale of debt or equity
securities (excluding sales to employees) of the Company or any subsidiary or
successor of the Company (“Proposed Financing”) for a
period of two (2) years from the consummation of the Business Combination.
If the Underwriter fails to accept in writing any proposal for any such Proposed
Financing within thirty (30) days after receipt of a written notice from the
Company containing such proposal, then the Underwriter shall have the right and
shall be given the opportunity to participate in the underwriting syndicate for
the Proposed Financing at a level immediately below the co-manager(s) or at such
other level below the co-manager(s) as the Underwriter shall select.
The Underwriter shall also be afforded the opportunity to purchase, as a
member of the selling group for the Proposed Financing, the largest allocation
provided to any member of the selling group.
3.14.
Application of Net
Proceeds. The Company will apply the net proceeds from this
Offering received by it in a manner substantially consistent with the
application described under the caption “Use of Proceeds” in the
Prospectus.
3.15.
Delivery of Earnings
Statements to Security Holders. The Company will make generally
available to its security holders as soon as practicable, but not later than the
first day of the fifteenth full calendar month following the Effective Date, an
earnings statement (which need not be certified by independent public or
independent certified public accountants unless required by the Act or the
Regulations, but which shall satisfy the provisions of Rule 158(a) under
Section 11(a) of the Act) covering a period of at least twelve consecutive
months beginning after the Effective Date.
3.16.
Notice to
FINRA.
EarlyBirdCapital,
Inc.
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2010
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3.16.1.
Business
Combination. For a period of ninety days following the Effective
Date, in the event any person or entity (regardless of any FINRA affiliation or
association) is engaged to assist the Company in its search for a Business
Combination candidate or to provide any similar Business Combination-related
services, the Company will provide the following information (the “Business Combination
Information”) to FINRA and the Underwriter: (i) complete
details of all services and copies of agreements governing such services (which
details or agreements may be appropriately redacted to account for privilege or
confidentiality concerns); and (ii) justification as to why the person or
entity providing the Business Combination-related services should not be
considered an “underwriter and related person” with respect to the Company’s
initial public offering, as such term is defined in Rule 5110 of FINRA’s Conduct
Rules. The Company also agrees that proper disclosure of such
arrangement or potential arrangement will be made in the proxy statement which
the Company will file for purposes of soliciting shareholder approval for the
Business Combination. Upon the Company’s delivery of the Business
Combination Information to the Underwriter, the Company hereby expressly
authorizes the Underwriter to provide such information directly to FINRA as a
result of representations the Underwriter have made to FINRA in connection with
the Offering.
3.16.2.
Broker/Dealer. In
the event the Company intends to register as a broker/dealer, merge with or
acquire a registered broker/dealer, or otherwise become a member of FINRA, it
shall promptly notify FINRA.
3.17.
Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Underwriter) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.18.
Internal
Controls. From and after the Closing Date, 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.
3.19.
Accountants.
For a period of five years from the Effective Date or until such earlier time
upon which the Trust Account is required to be liquidated, the Company shall
retain ▇▇▇▇▇▇ or other independent public accountants reasonably acceptable to
the Underwriter.
3.20.
Form 8-K’s. The
Company has retained ▇▇▇▇▇▇ to audit the financial statements of the Company as
of the Closing Date (the “Audited Financial Statements”)
reflecting the receipt by the Company of the proceeds of the Offering.
Within four (4) Business Days of the Closing Date, the Company shall file a
Current Report on Form 8-K with the Commission, which Report shall contain the
Company’s Audited Financial Statements. If the Over-Allotment Option has
not been exercised on the Effective Date, the Company will also file an
amendment to the Current Report on Form 8-K, or a new Current Report on Form
8-K, to provide updated financial information of the Company to reflect the
exercise and consummation of the Over-Allotment Option.
EarlyBirdCapital,
Inc.
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2010
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3.21.
FINRA. The
Company shall advise FINRA if it is aware that any 5% or greater shareholder of
the Company becomes an affiliate or associated person of a FINRA member
participating in the distribution of the Securities.
3.22.
Corporate
Proceedings. All corporate proceedings and other legal matters necessary
to carry out the provisions of this Agreement and the transactions contemplated
hereby shall have been done to the reasonable satisfaction to counsel for the
Underwriters.
3.23.
Investment Company.
The Company shall cause the proceeds of the Offering to be held in the Trust
Account to be invested only in “government securities” with specific maturity
dates or in money market funds meeting certain conditions under Rule 2a-7
promulgated under the Investment Company Act as set forth in the Trust Agreement
and disclosed in the Prospectus. The Company will otherwise conduct its business
in a manner so that it will not become subject to the Investment Company Act.
Furthermore, once the Company consummates a Business Combination, it will be
engaged in a business other than that of investing, reinvesting, owning, holding
or trading securities.
3.24.
Press Releases.
The Company agrees that it will not issue press releases or engage in any other
publicity, without the Underwriter’s prior written consent (not to be
unreasonably withheld), for a period of ninety (90) days after the Closing Date;
provided that in no event shall the Company be prohibited from issuing any press
release or engaging in any other publicity required by law.
3.25.
Insurance. The
Company will maintain directors’ and officers’ insurance (including insurance
covering the Company, its directors and officers for liabilities or losses
arising in connection with this Offering, including, without limitation,
liabilities or losses arising under the Act, the Exchange Act, the Rules and
Regulations and applicable foreign securities laws).
3.26.
Electronic
Prospectus. The Company shall cause to be prepared and delivered to
the Underwriter, at its expense, promptly, but in no event later than two (2)
Business Days from the effective date of this Agreement, an Electronic
Prospectus to be used by the Underwriters in connection with the Offering.
As used herein, the term “Electronic Prospectus” means a
form of prospectus, and any amendment or supplement thereto, that meets each of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Underwriter, that may be transmitted electronically by the
other Underwriters to offerees and purchasers of the Units for at least the
period during which a Prospectus relating to the Units is required to be
delivered under the Securities Act; (ii) it shall disclose the same information
as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the
extent that graphic and image material cannot be disseminated electronically, in
which case such graphic and image material shall be replaced in the electronic
prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or
convertible into a paper format or an electronic format, satisfactory to the
Underwriter, that will allow recipients thereof to store and have continuously
ready access to the Prospectus at any future time, without charge to such
recipients (other than any fee charged for subscription to the Internet as a
whole and for on-line time).
EarlyBirdCapital,
Inc.
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2010
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3.27.
Reservation of
Shares. The Company will reserve and keep available that maximum
number of its authorized but unissued securities which are issuable upon
exercise of the Warrants, the Insider Warrants, the EBC Warrants and the
Underwriter’s Securities outstanding from time to time.
3.28.
Warrants held by Insiders
and the Underwriter and/or its Designees.
3.28.1.
The Company hereby acknowledges and agrees that the Insider
Warrants, as well as any Warrants purchased by the Insiders in the open market
after the Offering, shall be exercisable on a cashless basis and shall not be
redeemable by the Company, in each event so long as such warrants are held by
the Insiders or their affiliates.
3.28.2.
The Company hereby acknowledges and agrees that the EBC Warrants, as
well as any Warrants purchased by EBC or its affiliates in the open market after
the Offering, shall not be redeemable by the Company unless, in connection with
such redemption, the Company requires all holders to exercise their Warrants on
a “cashless basis,” so long as such EBC Warrants are held by the EBC Investors
or their affiliates.
3.29.
Future
Financings. The Company agrees that neither it, nor any successor
or subsidiary of the Company, will consummate any public or private equity or
debt financing prior to or in connection with the consummation of a Business
Combination, unless all investors in such financing expressly waive, in writing,
any rights in or claims against the Trust Account.
3.30.
Quotation on the OTC
Bulletin Board. The Company will use its best efforts to maintain
the quotation of the Public Securities on the OTC Bulletin Board or a national
securities exchange until the earlier of five (5) years from the date of this
Agreement or until the Company’s securities are no longer registered under the
Exchange Act.
3.31.
Subunit Repurchases.
The Company has entered into a 10b5-1 plan (the “Plan”) pursuant to which the
Company is required to maintain a limit order to purchase up to 1,250,000
Subunits (or 1,437,500 Subunits if the Over-Allotment Option is exercised in
full) using funds held in the Trust Account at any time commencing 61 days after
the Effective Date and ending on the date immediately prior to the vote held to
approve a Business Combination. If the Company repurchases any Subunits
prior to the vote held to approve a Business Combination, such repurchases shall
(i) be made only in accordance with the Plan and (ii) comply with the technical
requirements of Rule 10b-18 under the Exchange Act (even if such repurchases
cannot actually be effectuated under Rule 10b-18).
EarlyBirdCapital,
Inc.
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2010
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3.32.
Business Combination
Announcement. Within five business days following the consummation
by the Company of a Business Combination, the Company shall cause an
announcement (“Business
Combination Announcement”) to be placed, at its cost, in The Wall Street
Journal, The New York Times and a third publication to be selected by the
Underwriter announcing the consummation of the Business Combination and
indicating that the Underwriter was the managing underwriter in the Offering and
the Company’s investment banker on the Business Combination. The Company
shall supply the Underwriter with a draft of the Business Combination
Announcement and provide the Underwriter with a reasonable opportunity to
comment thereon. The Company will not place the Business Combination
Announcement without the final approval of the Underwriter, which such approval
will not be unreasonably withheld.
3.33.
Colorado Trust
Filing. In the event the Securities are registered in the State of
Colorado, the Company will cause a Colorado Form ES to be filed with the
Commissioner of the State of Colorado no less than 10 days prior to the
distribution of the Trust Account in connection with a Business Combination and
will do all things necessary to comply with Section ▇▇-▇▇-▇▇▇ and Rule 51-3.4 of
the Colorado Securities Act.
4.
Conditions of Underwriter’s
Obligations. The obligations of the Underwriter to purchase and pay
for the Units, as provided herein, shall be subject to the continuing accuracy
of the representations and warranties of the Company as of the date hereof and
as of the Closing Date to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof and to the performance by the
Company of its obligations hereunder and to the following
conditions:
4.1.
Regulatory
Matters.
4.1.1.
Effectiveness of
Registration Statement. The Registration Statement shall have
become effective not later than 5:00 p.m., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by the
Underwriter, and, at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of GM.
4.1.2.
FINRA
Clearance. By the Effective Date, the Underwriter shall have
received clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriter as described in the Registration
Statement.
4.1.3.
No Commission Stop
Order. At the Closing Date, the Commission has not issued any order
or threatened to issue any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any part thereof, and has not
instituted or, to the Company’s knowledge, threatened to institute any
proceedings with respect to such an order.
4.1.4.
No Blue Sky Stop
Orders. No order suspending the sale of the Units in any
jurisdiction designated by the Underwriter pursuant to Section 3.3 hereof
shall have been issued on the Closing Date, and no proceedings for that purpose
shall have been instituted or shall be contemplated.
EarlyBirdCapital,
Inc.
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2010
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4.1.5.
OTC Bulletin Board
Quotation. The Public Securities shall have been approved for
quotation on the OTC Bulletin Board.
4.2.
Company Counsel
Matters.
4.2.1.
Closing Date Opinion of
Counsel. On the Closing Date, the Underwriter shall have received
the favorable opinions of Loeb & Loeb LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇,
each dated as of the Closing Date, addressed to the Underwriter as
representative for the several Underwriters and in forms attached as Exhibits
A and B
hereto, respectively.
4.2.2 Reliance. In
rendering such opinion, such counsel may rely: (i) as to matters involving the
application of laws other than the laws of the United States and jurisdictions
in which they are admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to the Underwriter) of other counsel
reasonably acceptable to the Underwriter, familiar with the applicable laws; and
(ii) as to matters of fact, to the extent they deem proper, on certificates
or other written statements of officers of the Company and officers of
departments of various jurisdiction having custody of documents respecting the
corporate existence or good standing of the Company, provided that copies of any
such statements or certificates shall be delivered to the Underwriters’ counsel
if requested. The opinion of counsel for the Company and any opinion
relied upon by such counsel for the Company shall include a statement to the
effect that it may be relied upon by counsel for the Underwriters in its opinion
delivered to the Underwriters.
4.3.
Cold Comfort
Letter. At the time this Agreement is executed, and at the Closing
Date, the Underwriter shall have received a letter, addressed to the Underwriter
as representative for the several Underwriters and in form and substance
satisfactory in all respects (including the non-material nature of the changes
or decreases, if any, referred to in clause (iii) below) to the Underwriter and
to GM from ▇▇▇▇▇▇ dated, respectively, as of the date of this Agreement and as
of the Closing Date:
(i) Confirming
that they are independent accountants with respect to the Company within the
meaning of the Act and the applicable Regulations and that they have not, during
the periods covered by the financial statements included in the Registration
Statement, the Statutory Prospectus and the Prospectus, provided to the Company
any non-audit services, as such term is used in Section 10A(g) of the
Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published Regulations thereunder;
EarlyBirdCapital,
Inc.
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2010
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(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that: (a)
the unaudited financial statements of the Company included in the Registration
Statement, the Statutory Prospectus and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the Act
and the Regulations or are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially consistent with
that of the audited financial statements of the Company included in the
Registration Statement, the Statutory Prospectus and the Prospectus; or (b) at a
date not later than five days prior to the Effective Date or Closing Date, as
the case may be, there was any change in the capital stock or long-term debt of
the Company, or any decrease in the shareholders’ equity of the Company as
compared with amounts shown in the October 6, 2010 balance sheet
included in the Registration Statement, the Statutory Prospectus and the
Prospectus, other than as set forth in or contemplated by the Registration
Statement, the Statutory Prospectus and the Prospectus, or, if there was any
decrease, setting forth the amount of such decrease, and (c) during the period
from October 6, 2010 to a specified date not later than two (2) days prior to
the Effective Date or Closing Date, as the case may be, there was any decrease
in revenues, net earnings or net earnings per Ordinary Share, in each case as
compared with the corresponding period in the preceding year and as compared
with the corresponding period in the preceding quarter, other than as set forth
in or contemplated by the Registration Statement and the Prospectus, or, if
there was any such decrease, setting forth the amount of such
decrease;
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company;
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Statutory Prospectus
and the Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the general
accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not during the immediately preceding five year period brought to
the attention of the Company’s management any reportable condition related to
internal structure, design or operation as defined in the Statement on Auditing
Standards No. 60 “Communication of Internal Control Structure Related Matters
Noted in an Audit,” in the Company’s internal controls; and
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(vii) Statements
as to such other matters incident to the transaction contemplated hereby as the
Underwriter may reasonably request.
4.4.
Officers’
Certificates.
4.4.1.
Officers’
Certificate. As of the Closing Date, the Underwriter shall have
received a certificate of the Company signed by a Co-Chair of the Board or the
Chief Executive Officer and the Secretary or Assistant Secretary of the Company
(in their capacities as such), respectively, to the effect that the Company has
performed all covenants and complied with all conditions required by this
Agreement to be performed or complied with by the Company prior to and as of the
Closing Date and that the conditions set forth in Section 4.5 hereof have
been satisfied as of such date and that, as of Closing Date, the representations
and warranties of the Company set forth in Section 2 hereof are true and
correct. In addition, the Underwriter will have received such other and
further certificates of officers of the Company as the Underwriter may
reasonably request.
4.4.2.
Secretary’s
Certificate. As of the Closing Date, the Underwriter shall have
received a certificate of the Company signed by the Secretary or Assistant
Secretary of the Company, respectively, certifying: (i) that the Amended and
Restated Memorandum and Articles of Association of the Company are true and
complete, have not been modified and are in full force and effect; (ii) that the
resolutions relating to the Offering are in full force and effect and have not
been modified; (iii) all correspondence between the Company or its counsel and
the Commission; and (iv) as to the incumbency of the officers of the
Company. The documents referred to in such certificate shall be attached
to such certificate.
4.5.
No Material
Changes. Prior to the Closing Date: (i) there shall have been no
material adverse change or development involving a material adverse change in
the condition or prospects or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition is set forth in
the Registration Statement, the Statutory Prospectus and Prospectus; (ii) no
action suit or proceeding, at law or in equity, shall have been pending or
threatened against the Company or any Company Affiliate before or by any court
or foreign, federal or state commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding may materially adversely
affect the business, operations, prospects or financial condition or income of
the Company, except as set forth in the Registration Statement, the Statutory
Prospectus and Prospectus; (iii) no stop order shall have been issued under the
Act and no proceedings therefor shall have been initiated or threatened by the
Commission; and (iv) the Registration Statement, the Statutory Prospectus and
the Prospectus and any amendments or supplements thereto shall contain all
material statements which are required to be stated therein in accordance with
the Act and the Regulations and shall conform in all material respects to the
requirements of the Act and the Regulations, and none of the Registration
Statement, the Statutory Prospectus or the Prospectus, or any amendment or
supplement thereto shall contain any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Statutory Prospectus and
Prospectus, in light of the circumstances under which they were made), not
misleading.
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4.6.
Delivery of
Agreements.
4.6.1.
Effective Date
Deliveries. On the Effective Date, the Company shall have delivered
to the Underwriter executed copies of the Escrow Agreement, the Trust Agreement,
the Services Agreement, the Warrant Agreement, the Subscription Agreements, the
Registration Rights Agreements, all of the Insider Letters and the
Plan.
4.6.2.
Closing Date
Deliveries. On the Closing Date, the Company shall have delivered
to the Underwriter, the Underwriter’s Purchase Option and the Secondary Market
Trading Survey from GM.
4.7.
Insider Warrants and EBC
Warrants. On the Closing Date, the Insider Investors and the EBC
Investors shall have purchased the Insider Warrants and EBC Warrants,
respectively, and the purchase price for such securities shall be deposited into
the Trust Account.
5.
Indemnification.
5.1.
Indemnification of
Underwriters.
5.1.1.
General.
Subject to the conditions set forth below, the Company agrees to indemnify and
hold harmless the Underwriter and each dealer selected by the Underwriter that
participates in the offer and sale of the Units (each a “Selected Dealer”) and each of
their respective directors, officers and employees and each person, if any, who
controls any such Underwriter or Selected Dealer (“Controlling Person”) within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
and its counsel, against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, whether
arising out of any action between the Underwriter and the Company or between the
Underwriter and any third party or otherwise) to which they or any of them may
become subject under the Act, the Exchange Act or any other foreign, federal,
state or local statute, law, rule, regulation or ordinance or at common law or
otherwise or under the laws, rules and regulation of foreign countries, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in (i) any Preliminary Prospectus, the Registration
Statement, or the Prospectus (as from time to time each may be amended and
supplemented); (ii) in any post-effective amendment or amendments or any new
registration statement and prospectus relating to any the securities of the
Company described herein; or (iii) any application or other document or written
communication (in this Section 5 collectively called “application”) executed by the
Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Units under the securities laws thereof or
filed with the Commission, any foreign or state securities commission or agency,
NASDAQ, the Amex, the OTC Bulletin Board or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such statement
or omission was made in reliance upon and in conformity with written information
furnished to the Company with respect to an Underwriter by or on behalf of such
Underwriter expressly for use in any Preliminary Prospectus, the Registration
Statement the Prospectus or any amendment or supplement thereof, or in any
application, as the case may be, which furnished written information, it is
expressly agreed, consists solely of the information described in the last
sentence of Section 2.3.1. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of any Underwriter to the extent that any loss, liability, claim,
damage or expense of such Underwriter results from the fact that a copy of the
Prospectus was not given or sent to the person asserting any such loss,
liability, claim or damage at or prior to the written confirmation of sale of
the Securities to such person as required by the Act and the Regulations, and if
the untrue statement or omission has been corrected in the Prospectus, unless
such failure to deliver the Prospectus was a result of non-compliance by the
Company with its obligations under Section 3.4 hereof. The Company agrees
promptly to notify the Underwriter of the commencement of any litigation or
proceedings against the Company or any of its officers, directors or controlling
persons in connection with the issue and sale of the Securities or in connection
with the Preliminary Prospectus, the Registration Statement or the
Prospectus.
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5.1.2.
Procedure. If
any action is brought against an Underwriter or controlling person in respect of
which indemnity may be sought against the Company pursuant to
Section 5.1.1, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the Company shall assume the
defense of such action, including the employment and fees of counsel (subject to
the reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless: (i) the employment of such counsel at the expense of the Company
shall have been authorized in writing by the Company in connection with the
defense of such action; (ii) the Company shall not have employed counsel to have
charge of the defense of such action; or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events the reasonable fees and expenses of not more than one additional firm of
attorneys selected by the Underwriter and/or controlling person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein,
if the Underwriter or controlling person shall assume the defense of such action
as provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably
withheld.
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5.2.
Indemnification of the
Company. The Underwriter agrees to indemnify and hold harmless the
Company, its directors, officers, and employees and agents who control the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and its counsel, against any and all loss, liability, claim,
damage and expense described in the foregoing indemnity from the Company to the
Underwriter, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or in any application, in reliance upon, and in strict
conformity with, written information furnished to the Company with respect to
such Underwriter by or on behalf of the Underwriter expressly for use in such
Registration Statement, Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto or in any such application, which furnished written
information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. In case any action shall
be brought against the Company or any other person so indemnified based on any
Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have the
rights and duties given to the Company, and the Company and each other person so
indemnified shall have the rights and duties given to the Underwriter by the
provisions of Section 5.1.2.
5.3.
Contribution.
5.3.1.
Contribution
Rights. In order to provide for just and equitable contribution
under the Act in any case in which (i) any person entitled to
indemnification under this Section 5 makes claim for indemnification
pursuant hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be required on the
part of any such person in circumstances for which indemnification is provided
under this Section 5, then, and in each such case, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial offering price appearing thereon and the Company
is responsible for the balance; provided, that, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each director, officer
and employee of an Underwriter or the Company, as applicable, and each person,
if any, who controls an Underwriter or the Company, as applicable, within the
meaning of Section 15 of the Act shall have the same rights to contribution
as the Underwriter or the Company, as applicable.
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5.3.2.
Contribution
Procedure. Within fifteen days after receipt by any party to this
Agreement (or its representatives) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (“contributing party”), notify
the contributing party of the commencement thereof, but the omission to so
notify the contributing party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representatives of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available.
6.
Intentionally
Omitted.
7.
Additional
Covenants.
7.1.
Additional Shares or
Options. The Company hereby agrees that until the Company
consummates a Business Combination, it shall not issue any Subunits, any
Ordinary Shares or any options or other securities convertible into Ordinary
Shares or any Preferred Shares which participate in any manner in the Trust
Account or which vote as a class with the Ordinary Shares on a Business
Combination.
7.2.
Trust Account Waiver
Acknowledgments. The Company hereby agrees that it will not
commence its due diligence investigation of any Target Business or obtain the
services of any vendor unless and until such Target Business or vendor
acknowledges in writing, whether through a letter of intent, memorandum of
understanding or other similar document (and subsequently acknowledges the same
in any definitive document replacing any of the foregoing), that (a) it has read
the Prospectus and understands that the Company has established the Trust
Account, initially in an amount of $15,000,000 for the benefit of the Public
Shareholders and that, except for the interest earned on the amounts held in the
Trust Account, the Company may disburse monies from the Trust Account only: (i)
to the Public Shareholders in the event of the conversion of their Subunits or
the dissolution and liquidation of the Trust Account as part of the Company’s
plan of dissolution and liquidation, (ii) to purchase Subunits prior to the
consummation of a Business Combination in accordance with the Plan or (iii) to
the Company after it consummates a Business Combination, and (b) for and in
consideration of the Company (1) agreeing to evaluate such Target Business for
purposes of consummating a Business Combination with it or (2) agreeing to
engage the services of the vendor, as the case may be, such Target Business or
vendor agrees that it does not have any right, title, interest or claim of any
kind in or to any monies of the Trust Account (“Claim”) and waives any Claim
it may have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with the Company and will not seek recourse against the
Trust Account for any reason whatsoever. The foregoing letters shall
substantially be in the form attached hereto as Exhibit
D and E,
respectively.
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7.3.
Insider
Letters. The Company shall not take any action or omit to take any
action which would cause a breach of any of the Insider Letters executed between
each Company Affiliate and the Underwriter and will not allow any amendments to,
or waivers of, such Insider Letters without the prior written consent of the
Underwriter.
7.4.
Amended and Restated
Memorandum and Articles of Association. The Company shall not take
any action or omit to take any action that would cause the Company to be in
breach or violation of its Amended and Restated Memorandum and Articles of
Association.
7.5.
Tender Offer, Proxy and
Other Information. The Company shall provide the Underwriter with
copies of all proxy or tender offer documentation and other information and all
related material sent to Public Shareholders in connection with a Business
Combination. In addition, the Company shall furnish any other state in which the
Offering was registered such information as may be requested by such
state.
7.6.
Acquisition/Liquidation of
Trust Account Procedure. The Company agrees that it will comply with
Articles ___ through ___ of its Amended and Restated Memorandum and Articles of
Association in connection with the consummation of a Business Combination or the
failure to consummate a Business Combination within 18 months from the Effective
Date (subject to extension for an additional six-month period, as described in
the Prospectus) (either such date being referred to as the “Termination
Date”).
7.7.
Rule 419. The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including, but not limited to, using its best efforts to
prevent any of the Company’s outstanding securities from being deemed to be a
“▇▇▇▇▇ stock” as defined in Rule 3a51-1 under the Exchange Act during such
period.
7.8.
Presentation of Potential
Target Businesses. The Company shall cause each of the Company
Affiliates to agree that, in order to minimize potential conflicts of interest
which may arise from multiple affiliations, the Company Affiliates will present
to the Company for its consideration, prior to presentation to any other person
or company, any suitable opportunity to acquire an operating business, until the
earlier of the consummation by the Company of a Business Combination, the
liquidation of the Trust Account or until such time as the Company Affiliates
cease to be affiliates of the Company, subject to any pre-existing fiduciary
obligations the Company Affiliates might have.
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8.
Representations and
Agreements to Survive Delivery. Except as the context otherwise
requires, all representations, warranties and agreements contained in this
Agreement shall be deemed to be representations, warranties and agreements at
the Closing Date or Option Closing Date, as applicable, and such
representations, warranties and agreements of the Underwriter and Company,
including the indemnity agreements contained in Section 5 hereof, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Underwriter, the Company or any controlling person,
and shall survive termination of this Agreement or the issuance and delivery of
the Securities to the Underwriter until the earlier of the expiration of any
applicable statute of limitations and the seventh (7th) anniversary of the later
of the Closing Date, at which time the representations, warranties and
agreements shall terminate and be of no further force and effect.
9.
Effective Date of This
Agreement and Termination Thereof.
9.1.
Effective Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
9.2.
Termination.
The Underwriter shall have the right to terminate this Agreement at any time
prior to any Closing Date: (i) if any domestic or international event or act or
occurrence has materially disrupted or, in the Underwriter’s sole opinion, will
in the immediate future materially disrupt, general securities markets in the
United States; or (ii) if trading on the New York Stock Exchange, the Amex,
NASDAQ or on the OTC Bulletin Board (or successor trading market) shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities shall have been required on the OTC Bulletin
Board or by order of the Commission or any other government authority having
jurisdiction, or (iii) if the United States shall have become involved in a war
or an increase in existing major hostilities, or (iv) if a banking moratorium
has been declared by a New York State or federal authority, or (v) if a
moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities market, or (vi) if the Company
shall have sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in the Underwriter’s sole opinion,
make it inadvisable to proceed with the delivery of the Units, or (vii) if any
of the Company’s representations, warranties or covenants hereunder are
breached, or (viii) if the Underwriter shall have become aware after the date
hereof of a Material Adverse Effect on the Company, or such adverse material
change in general market conditions, including, without limitation, as a result
of terrorist activities after the date hereof, as in the Underwriter’s sole
judgment would make it impracticable to proceed with the offering, sale and/or
delivery of the Units or to enforce contracts made by the Underwriter for the
sale of the Units.
9.3.
Expenses. In
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed by
Section 3.12 hereof.
9.4.
Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not
be in any way effected by, such election or termination or failure to carry out
the terms of this Agreement or any part hereof.
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10.
Miscellaneous.
10.1.
Notices. All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered by hand or reputable
overnight courier, delivered by facsimile transmission (with printed
confirmation of receipt) and confirmed, or by electronic transmission via PDF
and shall be deemed given when so mailed, delivered, faxed or transmitted (or if
mailed, two days after such mailing):
If to the
Underwriter:
EarlyBirdCapital,
Inc.
▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax No.:
___________
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
With a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
|
|
If
to the Company, to:
|
▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.:
___________
Attn: Ye
(Sophie) Tao
Email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
With a copy (which shall not constitute
notice) to:
Loeb
& Loeb, LLP
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Email:
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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10.2.
Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
10.3.
Amendment. This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
10.4.
Entire
Agreement. This Agreement (together with the other agreements and
documents being delivered pursuant to or in connection with this Agreement)
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof, and supersede all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
10.5.
Binding Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Underwriter, the Company and the controlling persons, directors and officers
referred to in Section 5 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein contained.
10.6.
Governing Law, Venue,
etc.
10.6.1.
In connection with Section 5-1401 of the General Obligations Law of
the State of New York, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of law that would result in the application of the substantive law
of another jurisdiction. The parties hereto agree that any action,
proceeding or claim arising out of or relating in any way to this Agreement
shall be resolved through final and biding arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitration shall be brought before the AAA International
Center for Dispute Resolution’s offices in New York City, New York, will be
conducted in English and will be decided by a panel of three arbitrators
selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s
decision shall be final and enforceable by any court having jurisdiction over
the party from whom enforcement is sought. The cost of such arbitrators
and arbitration services, together with the prevailing party’s legal fees and
expenses, shall be borne by the non-prevailing party or as otherwise directed by
the arbitrators. The Company hereby appoints, without power of revocation,
Loeb & Loeb, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax No.: (▇▇▇)
▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., as their respective agent to accept and
acknowledge on its behalf service of any and all process which may be served in
any arbitration, action, proceeding or counterclaim in any way relating to or
arising out of this Agreement. The Company further agrees to take any and
all action as may be necessary to maintain such designation and appointment of
such agent in full force and effect for a period of seven years from the date of
the Effective Date.
EarlyBirdCapital,
Inc.
____________,
2010
Page 40
of 41
10.6.2.
THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
10.6.3.
The Company agrees that the prevailing party(ies) in any such action
shall be entitled to recover from the other party(ies) all of its reasonable
attorneys’ fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
10.7.
Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto. Delivery of a signed counterpart of
this Agreement by fax or email/.pdf transmission shall constitute valid and
sufficient delivery thereof.
10.8.
Waiver, etc.
The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way effect the validity of this Agreement or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
10.9. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriter is
acting solely as an underwriter in connection with the offering of the Company's
securities. The Company further acknowledges that the Underwriter is acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm's length basis and in no event do the parties intend that the
Underwriter acts or be responsible as a fiduciary to the Company, its
management, shareholders, creditors or any other person in connection with any
activity that the Underwriter may undertake or have undertaken in furtherance of
the offering of the Company's securities, either before or after the date
hereof. The Underwriter hereby expressly disclaims any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriter agree that they are each responsible for making
their own independent judgments with respect to any such transactions, and that
any opinions or views expressed by the Underwriter to the Company regarding such
transactions, including but not limited to any opinions or views with respect to
the price or market for the Company's securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the Underwriter with respect to any breach or alleged breach of any fiduciary or
similar duty to the Company in connection with the transactions contemplated by
this Agreement or any matters leading up to such transactions.
[Signature
Page Follows]
EarlyBirdCapital,
Inc.
____________,
2010
Page 41
of 41
If the
foregoing correctly sets forth the understanding between the Underwriter and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
|
Very
Truly Yours,
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||||
|
CHINA
VANTAGEPOINT ACQUISITION
COMPANY
|
||||
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By:
|
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|||
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Name:
|
||||
|
Title:
|
||||
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Agreed
to and accepted
|
||||
|
as
of the date first written above:
|
||||
|
EARLYBIRDCAPITAL,
INC.
|
||||
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By:
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Name: | |||
|
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Title: | |||
[Signature
Page to Underwriting Agreement, dated ____________, 2010]