UNDERWRITING AGREEMENT between INFINITY I-CHINA ACQUISITION CORPORATION and MORGAN JOSEPH & CO. INC. and LEGEND MERCHANT GROUP, INC. Dated: _________, 2008
between
and
▇▇▇▇▇▇
▇▇▇▇▇▇ & CO. INC. and LEGEND MERCHANT GROUP, INC.
Dated:
_________, 2008
___________,
2008
▇▇▇▇▇▇
▇▇▇▇▇▇ & Co. Inc..
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Legend
Merchant Group, Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As
Representatives of the
Several
Underwriters named in Schedule I hereto
Re: Public
Offering of Securities
Ladies
and Gentlemen:
The
undersigned, Infinity I-China Acquisition Corporation, an exempt limited
duration company organized under the laws of the Cayman Islands (“Company”),
hereby confirms its agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc. (“▇▇▇▇▇▇
▇▇▇▇▇▇”)
and
Legend Merchant Group, Inc. (“Legend
Merchant Group”,
and
jointly with ▇▇▇▇▇▇ ▇▇▇▇▇▇, also referred to herein variously as “you,” or the
“Representatives”)
and
with the other underwriters named on Schedule I hereto for which ▇▇▇▇▇▇ ▇▇▇▇▇▇
and Legend Merchant Group are acting jointly as Representatives (the
Representatives and the other underwriters being collectively called the
“Underwriters”
or,
individually, an “Underwriter”)
as
follows:
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1.
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Purchase
and Sale of Securities.
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1.1 Firm
Securities.
1.1.1 Firm
Units.
Each
Firm Unit consists of one ordinary share, par value $.0001 per share
(“Ordinary
Share”),
and
one redeemable warrant (“Warrant”).
The Firm Units are to be offered initially to the public (“Offering”)
at the
offering price of $8.00 per Firm Unit.
1.1.2 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, severally and not jointly, to the several Underwriters, an aggregate
of
4,500,000 units (“Firm
Units”)
of the
Company, at a purchase price (net of discounts and commissions equal to $0.32)
of $7.68 per Firm Unit, subject to the payment of the Deferred Fees (as
hereinafter defined) of 0.24 per Firm Unit pursuant to Section1.13 hereof.
The Underwriters, severally and not jointly, agree to purchase from the Company
the number of Firm Units set forth opposite their respective names on Schedule
I
attached hereto and made a part hereof at a purchase price (net of discounts
and
commissions equal to $0.32) of $7.68 per Firm Unit, subject to the payment
of
the Deferred Fees of 0.24 per Firm Unit pursuant to Section1.13
hereof.
1.1.3 Deferral
of a Portion of Underwriters’ Discount.
On the Closing Date (as defined in Section 1.14 hereof) and, if applicable,
on
the Option Closing Date (as defined in Section 1.2.2), the Company agrees that,
of the $7.68 paid by the Underwriters, $0.24 per Unit in the Offering and ,
if
applicable, $0.24 per Option Unit (as defined in Section 1.2.1) (the
“Deferred
Fees”)
will
be deposited in the Trust Account. Upon the consummation of a Business
Combination (as defined in Section 1.3 hereof), the Representatives shall
promptly receive the Deferred Fees, but only with respect to those units as
to
which the component shares have not been redeemed for cash by those shareholders
who voted against the Business Combination and
exercised their redemption rights. In the event that the Company is unable
to consummate a Business Combination and the trustee of the Trust Account
commences liquidation of the Trust Account, the Representatives hereby agree
to
the following: (i) to forfeit any rights or claims to the Deferred Fees; and
(ii) that the Deferred Fees shall be distributed on a pro-rata basis among
the
holders of the Ordinary Shares included in the units sold in the Offering along
with any interest accrued thereon, net of taxes.
1.1.4 Payment
and Delivery for Firm Units.
Delivery and payment for the Firm Units shall be made at 10:00 a.m., New York
City time, on the fourth Business Day (as hereinafter defined) following the
effective date (“Effective
Date”)
of the
Registration Statement (as defined in Section 2.1.1 hereof) or at such earlier
time as shall be agreed upon by the Representatives and the Company at the
offices of Loeb & Loeb LLP (“Loeb
& Loeb”)
or
at
such other place as shall be agreed upon by the Representatives and the
Company. The hour and date of delivery and payment for the Firm Units are
called “Closing
Date.”
Payment for the Firm Units shall be made on the Closing Date at the
Representatives’ 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: [$32,850,000] of the proceeds received by the Company for the Firm
Units and $1,080,000 of the Deferred Fees shall be deposited in the trust
account established by the Company for the benefit of the public shareholders
as
described in the Registration Statement (“Trust
Account”)
pursuant to the terms of an Investment Management Trust Agreement (“Trust
Agreement”)
between the Company and American Stock Transfer & Trust Company
(“AST”)
and
the remaining proceeds shall be paid (subject to Section 3.12 hereof) to the
order of the Company upon delivery to you of certificates (in form and substance
satisfactory to the Underwriters) representing the Firm Units (or through the
facilities of the Depository Trust Company (“DTC”)
for the
account of the Underwriters. The Firm Units shall be registered in such
name or names and in such authorized denominations as the Representatives may
request in writing at least two full Business Days prior to the Closing
Date. The Company will permit the Representatives to examine and package
the Firm Units for delivery, at least one full Business Day prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Firm Units
except upon tender of payment by the Representatives for all the Firm
Units. “Business
Day”
shall
mean any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions or trust companies are authorized or obligated by
law
to close in New York City.
1.2 Over-Allotment
Option.
1.2.1 Option
Units.
For the purposes of covering any over-allotments in connection with the
distribution and sale of the Firm Units, the Underwriters are hereby granted,
severally and not jointly, an option to purchase up to an additional 675,000
units from the Company (“Over-allotment
Option”).
Such additional 675,000 units, the net proceeds of which will be deposited
in
the Trust Account, are hereinafter referred to as “Option
Units.”
The Firm Units and the Option Units are hereinafter collectively referred to
as
the “Units,”
and
the Units, 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.”
The purchase price to be paid for the Option Units will be the same price per
Option Unit as the price per Firm Unit set forth in Section 1.1.2
hereof.
1.2.2 Exercise
of Option.
The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be
exercised by the Representatives as to all (at any time) or any part (from
time
to time) of the Option Units within 30 days after the Effective Date. The
Underwriters will not be under any obligation to purchase any Option Units
prior
to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company
by
either of the Representatives, which must be confirmed in writing by email
or
facsimile transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of and payment for the Option Units (the
“Option
Closing Date”),
which
will not be later than five full business days after the date of the notice
or
such other time and in such other manner as shall be agreed upon by the Company
and the Representatives, at the offices of Loeb & Loeb or at such other
place as shall be agreed upon by the Company and the Representatives Upon
exercise of the Over-allotment Option, the Company will become obligated to
convey to the Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the number of Option
Units specified in such notice.
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1.2.3 Payment
and Delivery.
Payment for the Option Units will be made on the Option Closing Date at the
Representatives’ election by wire transfer in federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds, at a
purchase price of $7.68 per Option Unit (net of discounts and commissions equal
to $0.32), subject to the payment of the Deferred Fees as described in Section
1.1.3 hereof, upon delivery to you of certificates (in form and substance
satisfactory to the Underwriters) representing the Option Units (or through
the
facilities of DTC) for the account of the Underwriters. The certificates
representing the Option Units to be delivered will be in such denominations
and
registered in such names as the Representatives request 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 Representatives for inspection,
checking and packaging at the aforesaid office of the Company’s transfer agent
or correspondent not less than one full business day prior to such Closing
Date.
1.3 Warrants
Underlying Units.
Each
Warrant entitles its holder to exercise it to purchase one Ordinary Share for
$6.00 during the period commencing on the later of the consummation by the
Company of its “Business Combination” or one year from the Effective Date of the
Registration Statement and terminating on the four-year anniversary of the
Effective Date. “Business
Combination”
shall
mean any merger, capital stock exchange, asset acquisition, other contractual
arrangement resulting in a business combination or other similar business
combination consummated by the Company with an operating business having its
primary operations in the People’s Republic of China (as described more fully in
the Registration Statement (as defined in Section 2.1.1 below)).
1.4 Separate
Trading.
The
Ordinary Shares and the Warrants included in the Firm Units shall trade
separately on the tenth business day (or as soon as practicable thereafter)
following the earlier of (i) the expiration or termination of the Over-allotment
Option (as defined in Section 1.2.1 hereof) or (ii) its exercise in full,
subject in each case to the Company’s having filed a Current Report on Form 6-K
with the Securities and Exchange Commission (“Commission”)
containing an audited balance sheet reflecting the Company’s receipt of the
gross proceeds of the Offering and having issued a press release announcing
when
such separate trading will begin.
1.5 Representatives’
Purchase Option
.
1.5.1 Purchase
Option.
The Company hereby agrees to issue and sell to the Representatives (and/or
their
designees) on the Effective Date an option (“Representatives’
Purchase Option”)
for
the purchase of an aggregate of 450,000 units (“Representatives’
Units”)
for an
aggregate purchase price of $100. Each of the Representatives’ Units is
identical to the Firm Units except that the redeemable warrants included
in the Representatives’ Units have an exercise price per share of $6.60
(sometimes referred to as the “Representatives’
Warrants”).
The Representatives’ Purchase Option will be exercisable, in whole or in part,
commencing on the one-year anniversary of the Effective Date and expiring on
the
five-year anniversary of the Effective Date at an initial exercise price per
Representatives’ Unit of $10.00 (125% of the initial public offering price of a
Unit) and may be exercised on a cashless basis. The Representatives’
Purchase Option, the Representatives’ Units, the Ordinary Shares contained
within the Representatives’ Units, the Representatives’ Warrants and the
Ordinary Shares issuable upon exercise of the Representative’s Warrants are
hereinafter referred to collectively as the “Representatives’
Securities.”
The Public Securities and the Representatives’ Securities are hereinafter
referred to collectively as the “Securities.”
The Representatives understand and agree that there are significant restrictions
against transferring the Representatives’ Securities during the first year after
the Effective Date, as set forth in Section 3 of the Representatives’ Purchase
Option.
1.5.2 Payment
and Delivery.
Delivery and payment for the Representatives’ Purchase Option will be made on
the Closing Date. The Company will deliver to the Representatives, upon
payment therefor, certificates for the Representatives’ Purchase Option in the
name or names and in such authorized denominations as the Representatives may
request.
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| 2. |
Representations
and Warranties of the Company.
The Company represents and warrants to the Underwriters as
follows:
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2.1 Filing
of Registration Statement.
2.1.1 Pursuant
to the Act.
The Company has submitted to the Commission a registration statement on Form
F-1
(File No. 333- _________),
and thereafter filed an amendment or amendments thereto with the Commission,
including any related preliminary prospectus (“Preliminary
Prospectus”),
for
the registration of the Securities under the Securities Act of 1933, as amended
(“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. The conditions for use of Form F-1 to register
the Offering under the Act, as set forth in the General Instructions to such
Form, have been satisfied. 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 filed
by
the Company 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 4:30 p.m. New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared a preliminary
Prospectus, dated _________, 2008, for distribution by the Underwriters (the
“Sale
Preliminary 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 for public sale under the Act pursuant to the Registration
Statement or, if any Rule 462(b) Registration Statement is filed, will be duly
registered for public sale under the 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 Representatives have determined that
at
the Time of Sale the Sale Preliminary Prospectus includes an untrue statement
of
a material fact or omitted a statement of material fact necessary to make the
statements therein 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 Sale Preliminary Prospectus will be deemed
to include any additional information available to purchasers at the time of
entry into the first such new purchase contract.
2.1.2 Pursuant
to the Exchange Act.
The Company has filed with the Commission a Form 8-A (File Number 000-[ ])
providing for the registration under the Securities Exchange Act of 1934, as
amended (“Exchange
Act”),
of
the Units, the Ordinary Shares and the Warrants. The registration of the
Units, 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 best of the Company’s knowledge, any state
regulatory authority has issued any order or threatened to issue any order
preventing or suspending the use of any Sale Preliminary 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.
2.3 Disclosures
in Registration Statement.
2.3.1 10b-5
Representation.
At the time the Registration Statement became effective and at all times
subsequent thereto up to the Closing Date and the Option Closing Date, if any,
the Registration Statement, the Sale Preliminary Prospectus and the Prospectus
contains or will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in all material
respects conform to the requirements of the Act and the Regulations; and neither
the Registration Statement, the Sale Preliminary Prospectus nor the Prospectus,
nor any amendment or supplement thereto, on their respective dates, nor the
Sale
Preliminary Prospectus as of the Time of Sale (or such subsequent Time of Sale
pursuant to Section 2.1.1), does or will contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under
which they were made, not misleading. When any Preliminary Prospectus or
the Sale Preliminary Prospectus was first filed with the Commission (whether
filed as part of the Registration Statement for the registration of the
Securities or any amendment thereto or pursuant to Rule 424(a) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such Preliminary Prospectus or the Sale Preliminary
Prospectus and any amendments thereof and supplements thereto complied or will
comply in all material respects with the applicable provisions of the Act and
the Regulations and did not and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. 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 Underwriters
by
the Representatives expressly for use in the Registration Statement, the Sale
Preliminary Prospectus or the Prospectus or any amendment thereof or supplement
thereto.
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2.3.2 Disclosure
of Agreements.
The agreements and documents described in the Registration Statement, the Sale
Preliminary 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 Sale Preliminary 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 Sale Preliminary Prospectus or the Prospectus,
or
(ii) is material to the Company’s business, has been duly and validly executed
by the Company, is in full force and effect and is enforceable against the
Company and, to the Company’s knowledge, the other parties thereto, in
accordance with its terms, except (x) as such enforceability may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (z)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought, and none
of
such agreements or instruments has been assigned by the Company, and neither
the
Company nor, to the best of the Company’s knowledge, any other party is in
breach or default thereunder and, to the best of the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a breach or default thereunder. To the best of the
Company’s knowledge, performance by the Company of the material provisions of
such agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company
or
any of its assets or businesses, including, without limitation, those relating
to environmental laws and regulations.
2.3.3 Prior
Securities Transactions.
No securities of the Company have been sold by the Company or by or on behalf
of, or for the benefit of, any person or persons controlling, controlled by,
or
under common control with the Company since the Company’s formation, except as
disclosed in the Registration Statement.
2.3.4 Regulations.
The disclosures in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus concerning the effects of 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.
2.3.5 Statistical
Data.
The
statistical, industry-related and market-related data included in the
Registration Statement, the Sale Preliminary 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.
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2.3.6 No
Contemplation of a Business Combination.
Prior
to the date hereof, no officer, director or any beneficial owner of the
Company’s unregistered securities, and as of the Closing, the Company and such
officers, directors and beneficial owners will not have: (i) had any specific
Business Combination under consideration or contemplation; (ii) directly or
indirectly, contacted any potential target business or their representatives
or
had any 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 (iii) engaged or retained any
agent or other representative to identify or locate any suitable acquisition
candidate for the Company.
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 Sale Preliminary 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, and (iii) no
member of the Company’s management has resigned from any position with the
Company.
2.4.2 Recent
Securities Transactions; Etc.
Subsequent to the respective dates as of which information is given in the
Registration Statement, the Sale Preliminary 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 equity
securities.
2.5 Independent
Accountants.
▇▇▇ ▇▇▇▇ (“▇▇▇
▇▇▇▇”),
whose
report is filed with the Commission as part of the Registration Statement,
the
Sale Preliminary Prospectus and the Prospectus and included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, are independent
registered public accountants as required by the Act and the Regulations.
▇▇▇ ▇▇▇▇ has not, during the periods covered by the financial statements
included in the Registration Statement, the Sale Preliminary 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.
The financial statements, including the notes thereto and supporting schedules
included in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus fairly present the financial position, the results of operations
and
the cash flows of the Company at the dates and for the periods to which they
apply; such financial statements have been prepared in conformity with generally
accepted accounting principles, consistently applied throughout the periods
involved; and the supporting schedules included in the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus present fairly the
information required to be stated therein. The Registration Statement, the
Sale Preliminary Prospectus and the Prospectus discloses all material
off-balance sheet transactions, arrangements, obligations (including contingent
obligations), and other relationships of the Company with unconsolidated
entities or other persons that may have a material current or future effect
on
the Company’s financial condition, changes in financial condition, results of
operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses. There are no pro forma or as adjusted
financial statements which are required to be included in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus in accordance
with
Regulation S-X of the Regulations which have not been included as so
required.
2.7 Authorized
Capital; Options; Etc.
The Company had at the date or dates indicated in the Sale Preliminary
Prospectus and the Prospectus duly authorized, issued and outstanding
capitalization as set forth in the Registration Statement, the Sale Preliminary
Prospectus, and the Prospectus. Based on the assumptions stated in the
Registration Statement, the Sale Preliminary Prospectus, and the Prospectus,
the
Company will have on the Closing Date the adjusted share capitalization set
forth therein. Except as set forth in, or contemplated by the Registration
Statement, the Sale Preliminary 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 of the Company or any security convertible into Ordinary Shares of the
Company, or any contracts or commitments to issue or sell Ordinary Shares or
any
such options, warrants, rights or convertible securities.
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2.8 Valid
Issuance of Securities; Etc.
2.8.1 Outstanding
Securities.
All issued and outstanding securities of the Company (including, without
limitation, the Insider Warrants) have been duly authorized and validly issued
and are fully paid and non-assessable; the holders thereof have no rights of
rescission with respect thereto, and are not subject to personal liability
by
reason of being such holders; and none of such securities were issued in
violation of the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company. The authorized
Ordinary Shares and Warrants conform in all material respects to the description
thereof contained in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus. All offers and sales of any outstanding securities of
the Company were at all relevant times either registered under the Act or exempt
from such registration requirements and the registration requirements of
applicable blue sky laws and regulations.
2.8.2 Securities
Sold Pursuant to This Agreement.
The Securities have been duly authorized and, when issued and paid for, will
be
validly issued, fully paid and non-assessable; the holders thereof are not
and
will not be subject to personal liability by reason of being such holders;
the
Securities are not and will not be subject to the preemptive rights of any
holders of any security of the Company or similar contractual rights granted
by
the Company; and all corporate action required to be taken for the
authorization, issuance and sale of the Securities has been duly and validly
taken. The Securities conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus. When issued, the Representatives’ Securities 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 Representatives’ Securities are enforceable
against the Company in accordance with their respective terms, except (i) as
such enforceability may be limited by bankruptcy, insolvency, reorganization
or
similar laws affecting creditors’ rights generally, (ii) as enforceability of
any indemnification or contribution provision may be limited under the federal
and state securities laws, and (iii) that the remedy of specific performance
and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
2.8.3 Insider
Warrants.
The Insider Warrants (as defined in Section 2.21.3 hereof) 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 Insider Warrants are enforceable against the Company in
accordance with their respective terms, except: (i) as such enforceability
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under federal and state securities laws;
and (iii) that the remedy of specific performance and injunctive and other
forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. The Ordinary Shares issuable upon exercise of the Insider
Warrants have been reserved for issuance upon the exercise of the Insider
Warrants and, when issued in accordance with the terms of the Insider Warrants,
will be duly and validly authorized, validly issued, fully paid and
non-assessable, and the holders thereof are not and will not be subject to
personal liability by reason of being such holders.
2.8.4 No
Integration.
Other than with respect to the Insider Warrants, 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 or may be “integrated” pursuant to the Act
or the Regulations with the offer and sale of the Securities pursuant to the
Registration Statement.
7
2.9 Registration
Rights of Third Parties.
Except as set forth in the Sale Preliminary Prospectus and the Prospectus,
no
holders of any securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the right to
require the Company to register any such securities of the Company under the
Act
or to include any such securities in a Registration Statement to be filed by
the
Company.
2.10 Validity
and Binding Effect of Agreements.
This Agreement and the Warrant Agreement (as defined in Section 2.20 hereof),
the Trust Agreement, the Services Agreement (as defined in Section 2.21.4
hereof), the Escrow Agreement (as defined in Section 2.21.2 hereof), the Warrant
Purchase Agreement (as defined in Section 2.21.3 hereof) and the Registration
Rights Agreement (as defined in Section 2.21.5 hereof) have been duly and
validly authorized by the Company and constitute, and the Representatives’
Purchase Option (the Representatives’ Purchase Option, together with the Warrant
Agreement, the Trust Agreement, the Services Agreement, the Escrow Agreement,
the Warrant Purchase Agreement and the Registration Agreement are referred
to
hereinafter collectively as the “Ancillary
Agreements”),
has
been duly validly authorized by the Company and, when executed and delivered,
will constitute the valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except (i) as
such enforceability may be limited by bankruptcy, insolvency, reorganization
or
similar laws affecting creditors’ rights generally, (ii) as enforceability of
any indemnification or contribution provision may be limited under the federal
and state securities laws, and (iii) that the remedy of specific performance
and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
2.11 No
Conflicts, Etc.
The execution, delivery, and performance by the Company of this Agreement and
the Ancillary Agreements, the consummation by the Company of the transactions
herein and therein contemplated and the compliance by the Company with the
terms
hereof and thereof do not and will not, with or without the giving of notice
or
the lapse of time or both (i) result in a breach of, or conflict with any of
the
terms and provisions of, or constitute a default under, or result in the
creation, modification, termination or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms
of
any agreement or instrument to which the Company is a party except pursuant
to
the Trust Agreement; (ii) result in any violation of the provisions of the
Memorandum and Articles of Association of the Company; or (iii) violate any
existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over
the
Company or any of its properties or business.
2.12 No
Defaults; Violations.
No
material default exists in the due performance and observance of any term,
covenant or condition of any material license, contract, indenture, mortgage,
deed of trust, note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any other material
agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is
subject. The Company is not in violation of any term or provision of its
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 as described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus. The
disclosures in the Registration Statement, the Sale Preliminary Prospectus
and
the Prospectus concerning the effects of federal, state and local regulation
on
this Offering and the Company’s business purpose as currently contemplated are
correct in all material respects and do not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
8
2.13.2 Transactions
Contemplated Herein.
The Company has all corporate power and authority to enter into this Agreement
and to carry out the provisions and conditions hereof, and all consents,
authorizations, approvals and orders required in connection therewith have
been
obtained. No consent, authorization or order of, and no filing with, any
court, government agency or other body is required for the valid issuance,
sale
and delivery, of the Securities and the consummation of the transactions and
agreements contemplated by this Agreement and the Ancillary Agreements and
as
contemplated by the Registration Statement, the Sale Preliminary Prospectus
and
the Prospectus, except with respect to applicable federal and state securities
laws and the rules and regulations (“NASD
Rules”)
adopted
by the Financial Industry Regulatory Authority (“FINRA”)
as
part of the FINRA Rulebook.
2.14 D&O
Questionnaires.
To
the best of the Company’s knowledge, all information contained in the
questionnaires (“Questionnaires”)
completed by each of the Company’s shareholders prior to the Offering
(“Existing
Shareholders”)
and
the directors and officers of the Company and previously provided to the
Representatives is true and correct and the Company has not become aware of
any
information which would cause the information disclosed in the Questionnaires
completed by such person to become inaccurate or incorrect.
2.15 Litigation;
Governmental Proceedings.
There is no action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to the best of the Company’s
knowledge, threatened against, or involving the Company or, to the best of
the
Company’s knowledge, any Existing Shareholder, director or officer which has not
been disclosed, that is required to be disclosed, in the Registration Statement,
the Sale Preliminary Prospectus, the Prospectus or the
Questionnaires.
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 place 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 assets, business or operations of
the
Company.
2.17 Transactions
Affecting Disclosure to FINRA.
2.17.1 Finder’s
Fees.
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 Existing Shareholder with respect to the sale of the Securities
hereunder or any other arrangements, agreements or understandings of the Company
or any Existing Shareholder that may affect the Underwriters’ compensation, as
determined by FINRA.
2.17.2 Issuance
of Securities.
Except
with respect to the Representatives, 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. 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.
2.17.3 Payments
within Six Months.
The Company has not made any direct or indirect payments (in cash, securities
or
otherwise) (i) to any person, as a finder’s fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing
to
the Company persons who raised or provided capital to the Company, (ii) to
any
FINRA member or (iii) to any person or entity that has any direct or indirect
affiliation or association with any FINRA member, within the six months prior
to
the Effective Date, other than payments to the Representatives in connection
with this Offering.
9
2.17.4 Use
of Proceeds.
None of the net proceeds of the Offering and Private Placement (as defined
in
Section 2.21.3 hereof) will be paid by the Company to any participating FINRA
member or its affiliates, except as specifically authorized herein and except
as
may be paid in connection with a Business Combination as contemplated by the
Sale Preliminary Prospectus.
2.17.5 Insiders’
FINRA Affiliation.
Based on the Questionnaires, no officer, director or any beneficial owner of
the
Company’s unregistered securities has any direct or indirect affiliation or
association with any FINRA member, as determined in accordance with the rules
and regulations of FINRA. No officer, director or any beneficial owner of
the Company’s unregistered securities (i) is an owner of stock or other
securities of any member of FINRA (other than securities purchased on the open
market); or (ii) has made a subordinated loan to any member of FINRA. The
Company will advise the Representatives and its counsel if it learns that any
officer, director or beneficial owner (direct or indirect) of 5% or more of
the
Company’s outstanding Ordinary Shares is or becomes an affiliate or associated
person of an FINRA member participating in the Offering.
2.17.6 Conflict
of Interest.
No
FINRA member intending to participate in the Offering has a conflict of interest
with the Company. For this purpose, a “conflict of interest” exists when a
member of FINRA and/or its associated persons, parent or affiliates in the
aggregate beneficially own 10% or more of the Company’s outstanding subordinated
debt or common equity, or 10% or more of the Company’s preferred equity.
“Members participating in the Offering” include managing agents, syndicate group
members and all dealers which are members of FINRA.
2.18 Foreign
Corrupt Practices Act; Patriot Act.
2.18.1 Foreign
Corrupt Practices Act.
Neither the Company nor any of the Existing Shareholders or any other
person acting on behalf of the Company has, directly or indirectly, given or
agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee
of any governmental agency or instrumentality of any government (domestic or
foreign) or any political party or candidate for office (domestic or foreign)
or
any political party or candidate for office (domestic or foreign) or other
person who was, is, or may be in a position to help or hinder the business
of
the Company (or assist it in connection with any actual or proposed transaction)
that (i) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have had a material adverse effect on the assets, business or
operations of the Company as reflected in any of the financial statements
contained in the Prospectus or (iii) if not continued in the future, might
adversely affect the assets, business, operations or prospects of the
Company. The Company’s internal accounting controls and procedures are
sufficient to cause the Company to comply with the Foreign Corrupt Practices
Act
of 1977, as amended.
2.18.2 Patriot
Act.
Neither the Company nor any Company affiliates have violated: (i) the Bank
Secrecy Act, as amended, (ii) the Money Laundering Control Act of 1986, as
amended, 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.
2.18.3 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.
10
2.19 Officers’
Certificate.
Any certificate signed by any duly authorized officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered
thereby.
2.20 Warrant
Agreement.
The Company has entered into a warrant agreement with respect to the Warrants
and the Representatives’ Warrants with AST substantially in the form annexed as
Exhibit 4.4 to the Registration Statement (“Warrant
Agreement”).
2.21 Agreements
With Existing Shareholders
2.21.1 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
noncompete provision may be limited under the federal and state securities
laws,
and (iii) that the remedy of specific performance and injunctive and other
forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
substantially in the form annexed as Exhibits 10.1.1 to 10.1.6 to the
Registration Statement (“Insider
Letters”),
pursuant to which each of the Existing Shareholders, officers and directors
of
the Company agree to certain matters, including but not limited to, certain
matters described as being agreed to by them under the “Proposed Business”
section of the Sale Preliminary Prospectus and the Prospectus.
2.21.2 Escrow
Agreement.
The Company has caused the Existing Shareholders to enter into an escrow
agreement (“Escrow
Agreement”)
with
AST (“Escrow
Agent”),
substantially in the form annexed as Exhibit 10.5 to the Registration Statement,
whereby (i) the Ordinary Shares owned by the Existing Shareholders (the
“Existing
Shareholders Shares”)
will be
held in escrow by the Escrow Agent, until one year from the date of consummation
of a Business Combination and (ii) the Insider Warrants will be held in escrow
by the Escrow Agent until such time that the Company consummates a Business
Combination; provided, however, that if the Escrow Agent is notified by the
Company that the Company is being liquidated at any time during the applicable
Escrow Period (as that term is defined in the Escrow Agreement), then
immediately prior to the effectiveness of such liquidation, the Escrow Agent
shall promptly destroy the certificates representing the Existing Shareholders
Shares and the Insider Warrants. During such escrow period, the Existing
Shareholders shall be prohibited from selling or otherwise transferring such
shares (except to spouses and children of Existing Shareholders and trusts
established for their benefit and as otherwise set forth in the Escrow
Agreement) but will retain the right to vote such shares. To the Company’s
knowledge, the Escrow Agreement is enforceable against each of the Existing
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, any agreement or instrument to
which any of the Existing Shareholders is a party. The Escrow Agreement
shall not be amended, modified or otherwise changed without the prior written
consent of the Representatives.
2.21.3 Warrant
Purchase Agreement.
Certain of the Existing Shareholders and the Company executed and delivered
an
agreement, substantially in the form annexed as Exhibit 10.6 of the Registration
Statement (the “Warrant
Purchase Agreement”),
pursuant to which such persons, among other things, have purchased an aggregate
of 1,500,000 warrants identical to the Warrants (the “Insider
Warrants”)
at a
purchase price of $1.00 per Placement Warrant in a private placement intended
to
be exempt from registration under the Act under Section 4(2) of the Act (the
“Private
Placement”).
Such Existing Shareholders and the Company have delivered executed copies of
the
Warrant Purchase Agreement and such Existing Shareholders have delivered the
purchase price on or before the Effective Date. Pursuant to the Warrant
Purchase Agreement, (i) $1,500,000 of the proceeds from the sale of the Insider
Warrants will be deposited by the Company in the Trust Account in accordance
with the terms of the Trust Agreement on or prior to the Closing Date, and
(ii)
the purchasers of the Insider Warrants have waived any and all rights and claims
that they may have to any proceeds, and any interest thereon, held in the Trust
Account in respect of the Insider Warrants 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.
11
2.21.4 Administrative
Services.
The Company has entered into an agreement (“Services
Agreement”)
with
______________________ substantially in the form annexed as Exhibit 10.5 to
the
Registration Statement pursuant to which ___________________ will make available
to the Company general and administrative services including office space,
utilities, administrative, technology and secretarial services for the Company’s
use for $7,500 per month for up to 24 months.
2.21.5 Registration
Rights Agreement.
The
Company and the Existing Shareholders have entered into a registration rights
agreement (“Registration
Rights Agreement”)
substantially in the form annexed as Exhibit 10.7 to the Registration Statement,
whereby the Existing Shareholders will be entitled to certain registration
rights as set forth in such Registration Rights Agreement and described more
fully in the Registration Statement. [confirm]
2.22 Investment
Management Trust Agreement.
The Company has entered into the Trust Agreement with respect to certain
proceeds of the Offering substantially in the form annexed as Exhibit 10.4
to
the Registration Statement.
2.23 No
Existing Non-Competition Agreements.
No
Existing Shareholder, employee, officer or director of the Company is subject
to
any non-competition agreement or non-solicitation agreement with any employer
or
prior employer which could materially affect his ability to be an Existing
Shareholder, employee, officer and/or director of the Company.
2.24 Investment
Company Act; Investments.
The Company has been advised concerning the Investment Company Act of 1940,
as
amended (the “Investment
Company Act”),
and
the rules and regulations thereunder and has in the past conducted, and intends
in the future to conduct, its affairs in such a manner as to ensure that it
will
not become an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act and such rules and
regulations. The Company is not, nor will the Company become upon the sale
of
the Units and the application of the proceeds therefore as described in the
Prospectus under the caption “Use of Proceeds”, an “investment company” or a
person controlled by an “investment company” within the meaning of the
Investment Company Act. No more than 45% of the “value” (as defined in Section
2(a)(41) of the Investment Company Act) of the Company’s total assets (exclusive
of “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 the Government
Securities.
2.25 Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.26 Related
Party Transactions.
There are no business relationships or related party transactions involving
the
Company or any other person required to be described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus that have not
been
described as required.
2.27 Standard
& Poor’s Application.
Unless the Securities are listed or quoted, as the case may be, on the New
York
Stock Exchange, the American Stock Exchange or quoted on the NASDAQ Global
Market on the effective date, prior to the date hereof the Company has made
application with Standard & Poor’s to have information regarding the Company
and the Securities included in the Standard & Poor’s Daily News and
Corporation Records Description so as to allow for secondary trading of the
Public Securities in the state jurisdictions which allow for an exemption for
non-issuer secondary trading.
2.28 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: (i) 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 (ii) a journalist or publication to write or publish favorable
information about the Company or any such affiliate.
12
2.29 ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
Solely
to the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”),
and the
rules and regulations of the Commission thereunder has been applicable to the
Company, there is and has been no failure on the part of the Company to comply
in material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
|
3.
|
Covenants
of the Company.
The Company covenants and agrees as
follows:
|
3.1 Amendments
to Registration Statement.
The Company will deliver to the Representatives, prior to filing, any amendment
or supplement to the Registration Statement or Prospectus proposed to be filed
after the Effective Date and the Company shall not file any such amendment
or
supplement to which the Representatives shall reasonably object.
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 Securities in accordance
with the provisions hereof and the Prospectus. If at any time when a Sale
Preliminary Prospectus or Prospectus relating to the 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
Sale Preliminary Prospectus or the Prospectus, as then amended or supplemented,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or
if
it is necessary at any time to amend the Sale Preliminary Prospectus or the
Prospectus to comply with the Act, the Company will notify the Representatives
promptly and prepare and file with the Commission, subject to Section 3.1
hereof, an appropriate amendment or supplement in accordance with Section 10
of
the Act.
3.2.2 Filing
of Final Prospectus.
The Company will file the Prospectus (in form and substance satisfactory to
the
Representatives) with the Commission pursuant to the requirements of Rule 424
of
the Regulations.
3.2.3 Exchange
Act Registration.
The Company will use its best efforts to maintain the registration of the
Securities under the provisions of the Exchange Act (except in connection with
a
going-private transaction) for a period of five years from the Effective Date,
or until the Company is required to be liquidated if earlier, or, in the case
of
the Warrants, until the Warrants expire and are no longer exercisable. The
Company will not deregister the Securities under the Exchange Act without the
prior written consent of the Representatives.
3.2.4 Exchange
Act Filings.
For so
long as any of the Securities are registered under the Exchange Act, 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 a company registered
under
Section 12(b) of the Exchange Act, as if the Company were a company incorporated
in the United States (it being agreed, however, that with respect to quarterly
and annual financial information, the Company may furnish such information
on
Form 6-K or Form 20-F, as the case may be).
3.2.5 Ineligible
Issuer.
At the time of filing the Registration Statement and at the date hereof, the
Company was and is an “ineligible issuer,” as defined in Rule 405 under the
Securities Act. The
Company has not made and will not make any offer relating to the Securities
that
would constitute an “issuer free writing Prospectus,” as defined in Rule 433, or
that would otherwise constitute a “free writing Prospectus,” as defined in Rule
405.
13
3.2.6 Preliminary
Proxy Solicitation.
The
Company covenants and agrees that the preliminary proxy solicitation materials
seeking shareholder approval of a Business Combination will include such
information and materials as would be required if the Company were subject
to
the proxy rules promulgated under the Exchange Act.
3.3 Blue
Sky Matters.
3.3.1 Blue
Sky Filing.
Unless the Securities are listed or quoted, as the case may be, on the New
York
Stock Exchange, the American Stock Exchange or the Nasdaq Global Market, the
Company will endeavor in good faith, in cooperation with the Representatives,
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 Representatives 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. In
each jurisdiction where such qualification shall be effected, the Company will,
unless the Representatives agree 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. The Company shall pay all filings fees in connection with
the qualification of the securities under the securities laws of such
jurisdictions as the Representatives may reasonably designate.
3.3.2 Secondary
Market Trading Survey.
In the
event the Public Securities are no longer listed or quoted, as the case may
be,
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Global
Market, or until such earlier time upon which the Company is required to be
liquidated, the Company shall engage Loeb & Loeb, for a one-time fee of
$5,000, to deliver and update to the Underwriters on a timely basis, but in
any
event at the beginning of each fiscal quarter, a written report detailing those
states in which the Public Securities may be traded in non-issuer transaction
under the Blue Sky laws of the fifty States.
3.3.3 Colorado
Trust Filing.
In the
event the Securities are registered in the State of Colorado, the Company will
cause a Colorado Form ES to be filed with the Commissioner of the State of
Colorado no less than 10 days prior to the distribution of the Trust Account
in
connection with a Business Combination and will do all things necessary to
comply with Section ▇▇-▇▇-▇▇▇ and Rule 51-3.4 of the Colorado Securities
Act.
3.4 Delivery
to Underwriters of Preliminary Prospectus, Sale Preliminary Prospectus and
Prospectuses.
The Company will deliver to each of the several Underwriters, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act such number of copies of each
Preliminary Prospectus, Sale Preliminary Prospectus and Prospectus as such
Underwriters may reasonably request and, as soon as the Registration Statement
or any amendment or supplement thereto becomes effective, deliver to you two
original executed Registration Statements, including exhibits, and all
post-effective amendments thereto and copies of all exhibits filed therewith
or
incorporated therein by reference and a copy of all original executed consents
of certified experts.
3.5 Effectiveness
and Events Requiring Notice to the Representatives.
The Company will use its best efforts to cause the Registration Statement to
remain effective and will notify the Representatives immediately and confirm
the
notice in writing (i) of the effectiveness of the Registration Statement and
any
amendment thereto, (ii) of the issuance by the Commission of any stop order
or
of the initiation, or the threatening, of any proceeding for that purpose,
(iii)
of the issuance by any state securities commission of any proceedings for the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction or of the initiation, or the threatening, of any proceeding for
that purpose, (iv) of the mailing and delivery to the Commission for filing
of
any amendment or supplement to the Registration Statement or Prospectus, (v)
of
the receipt of any comments or request for any additional information from
the
Commission, and (vi) of the happening of any event during the period described
in Section 3.2.3 hereof that, in the judgment of the Company or its counsel,
makes any statement of a material fact made in the Registration Statement,
the
Sale Preliminary Prospectus or the Prospectus untrue or that requires the making
of any changes in the Registration Statement, the Sale Preliminary Prospectus
or
the Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Commission or any state securities commission shall enter a stop order or
suspend such qualification at any time, the Company will make every reasonable
effort to obtain promptly the lifting of such order.
14
3.6 Review
of Quarterly Financial Statements.
Until the earlier of five years from the Effective Date, or until such earlier
upon which the Company is required to be liquidated and dissolved, the Company,
at its expense, shall cause its regularly engaged independent registered public
accountants to review (but not audit) the Company’s financial statements for
each of the first three fiscal quarters prior to the public announcement of
quarterly financial information and the filing of the Company’s quarterly
financial information with the Commission.
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 Existing Shareholder unless the Company obtains an opinion
from an independent investment banking firm that is a member of the FINRA that
the Business Combination is fair to the Company’s shareholders from a financial
perspective. No Existing Shareholder or any affiliate of such person shall
receive any fees of any type (other than reimbursement of ordinary and customary
expenses incurred on behalf of the Company) in connection with any Business
Combination.
3.7.2 Compensation
to Existing Shareholders.
Except as set forth above in this Section 3.7, the Company shall not pay any
Existing Shareholder or any of their affiliates any fees or compensation from
the Company, for services rendered to the Company prior to, or in connection
with, the consummation of a Business Combination; provided that the Existing
Shareholders shall be entitled to reimbursement from the Company for their
reasonable out-of-pocket expenses incurred in connection with seeking and
consummating a Business Combination.
3.8 Financial
Public Relations Firm.
Promptly after the execution of a definitive agreement for a Business
Combination, the Company shall consider, in good faith, retaining at its
expense, a financial public relations firm reasonably acceptable to the
Representatives for a term to be agreed on by the Company and the
Representatives.
3.9 Reports
to the Representatives.
3.9.1 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, the Company will furnish
to
the Representatives (Legend Merchant Group, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and
▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇) and their 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 Representatives (i) a copy of each periodic report
the
Company shall be required to file with the Commission, (ii) a copy of every
press release and every news item and article with respect to the Company or
its
affairs which was released by the Company, (iii) a copy of each Form 6-K or
8-K,
as the case may be, or Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared
by the Company, (iv) two (2) copies of each Registration Statement filed by
the
Company with the Commission under the Securities Act, (v) a copy of monthly
statements, if any, setting forth such information regarding the Company’s
results of operations and financial position (including balance sheet, profit
and loss statements and data regarding outstanding purchase orders) as is
regularly prepared by management of the Company and (vi) such additional
documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Representatives may from time to
time
reasonably request. Documents filed with the Commission pursuant to its
▇▇▇▇▇ system shall be deemed to have been delivered to the Representatives
pursuant to this Section, after notice to the Representatives that such filing
has been made.
3.9.2 Transfer
Sheets.
For a period of two years following the Effective Date or until such earlier
time upon which the Company is required to be liquidated, the Company shall
retain AST or another transfer and warrant agent acceptable to the
Representatives (“Transfer
Agent”)
and
will furnish to the Representatives, at the Company’s sole cost and expense, for
a period of one year following the Effective Date, such transfer sheets of
the
Company’s securities as the Representatives may request, including the daily and
monthly consolidated transfer sheets of the Transfer Agent and DTC. The
Underwriters acknowledge that AST is an acceptable Transfer
Agent.
15
3.9.3 Secondary
Market Trading Maintenance.
Unless the Securities are listed or quoted, as the case may be, on the New
York
Stock Exchange, the American Stock Exchange or quoted on the NASDAQ Global
Market, until such earlier time upon which the Company is required to be
liquidated or five (5) years from the date hereof, the Company shall maintain
its listing
in Standards & Poors’ Daily News and Corporation Records Corporate
Descriptions at its cost and expense and at the beginning of each fiscal
quarter, shall provide the Representatives with a written report of counsel
detailing those states in which the Securities may be traded in non-issuer
transactions under the Blue Sky laws of the fifty States (“Secondary Market
Trading Survey”).
3.9.4 Trading
Reports.
During such time as any of the Securities are quoted on the OTC Bulletin Board
(or any successor trading market such as the Bulletin Board Exchange) or the
Pink Sheets, LLC (or similar publisher of quotations) and no other automated
quotation system, the Company shall provide to the Representatives, at its
expense, such reports published by FINRA or the Pink Sheets, LLC relating to
price trading of the Securities, as the Representatives shall reasonably
request.
3.10 Disqualification
of Form F-1 and F-3 or 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 F-1 or F-3 or
Form S-1 or S-3 (or other appropriate form) for the registration of the Warrants
and the Representatives’ Warrants under the Act (except in connection with a
going-private transaction).
3.11 Payment
of Expenses; Deferred Fees.
3.11.1 General
Expenses Related to the Offering.
The Company hereby agrees to pay on each of the Closing Date and the Option
Closing Date, if any, to the extent not paid at Closing Date, all expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to (i) the preparation, printing, filing
and mailing (including the payment of postage with respect to such mailing)
of
the Registration Statement, the Preliminary, the Preliminary Sale and Final
Prospectuses and the printing and mailing of this Agreement and related
documents, including the cost of all copies thereof and any amendments thereof
or supplements thereto supplied to the 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 and the Representatives’ Purchase Option, including any transfer or other
taxes payable thereon, (iii) payment of $40,000 to Loeb & Loeb,
Underwriters’ legal counsel in connection with qualifying the Offering under the
“Blue Sky” laws of the state specified by the Representatives, (iv) filing
fees, costs and expenses incurred in registering the Offering with the FINRA
and
qualifying the Public Securities under state or foreign securities or Blue
Sky
laws, (v) fees, costs and expenses incurred in listing the Company on the Over
the Counter Bulletin Board, (vi) fees and disbursements of the transfer and
warrant agent, (viii) the Company’s expenses associated with “due diligence” and
“road show” meetings arranged by the Representatives, (ix) the preparation,
binding and delivery of leather bound transaction “bibles,” in form and style
reasonably satisfactory to the Representatives and transaction lucite cubes
or
similar commemorative items in a style and quantity as reasonably requested
by
the Representatives, and (x) 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 3.11.1. The
Representatives may deduct from the net proceeds of the Offering payable to
the
Company on the Closing Date, or the Option Closing Date, if any, the expenses
set forth in this Agreement to be paid by the Company to the Representatives
and
others. If the Offering contemplated by this Agreement is not consummated
for any reason whatsoever then the Company shall reimburse the Underwriters
in
full for their out of pocket expenses, including, without limitation, its legal
fees and disbursements and “road show” and due diligence
expenses.
16
3.11.2 Deferred
Fees.
Upon the consummation of a Business Combination, the Company shall, in
accordance with Section 1.1.3, pay the Deferred Fees to the
Representatives. These payments shall be made by wire transfer to an
account designated by the Representatives on the closing date of the Business
Combination. The Company further agrees to reimburse the Representatives
for all reasonable out-of-pocket expenses, including, but not limited to,
“road-show” and due diligence expenses in the event the Representatives assist
the Company in trying to obtain shareholder approval of a proposed Business
Combination.
3.12 Application
of Net Proceeds.
The Company will apply the net proceeds from the Offering and Private Placement
received by it in a manner consistent with the application described under
the
caption “Use of Proceeds” in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus.
3.13 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.
3.14 Notice
to FINRA.
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 merger candidate or to provide any other merger and acquisition
services, the Company will provide the following information (“Merger
Information”)
to
FINRA, the Representatives and their counsel prior to the consummation of the
Business Combination: (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 merger
and acquisition 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 2710 of the NASD 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 Merger Information to the Representatives, the Company hereby
expressly authorizes the Representatives to provide such information directly
to
FINRA as a result of representations the Representatives have made to FINRA
in
connection with the Offering.
3.15 Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors
or
shareholders (without the consent of the Representatives) 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
Securities.
3.16 Internal
Controls.
The Company will maintain a system of internal accounting controls sufficient
to
provide reasonable assurances that: (i) transactions are executed in accordance
with management’s general or specific authorization, (ii) transactions are
recorded as necessary in order to permit preparation of financial statements
in
accordance with generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
3.17 Accountants.
Until the earlier of five years from the Effective Date or until such earlier
time upon which the Company is required to be liquidated, the Company shall
retain ▇▇▇ ▇▇▇▇ or another independent registered public accounting firm
reasonably acceptable to the Representatives.
3.18 Exchange
Act Filings.
17
3.18.1 ▇▇▇▇▇
Filings.
For so
long as the Units, Ordinary Shares and Warrants are registered under the
Exchange Act, the Company shall timely file with the Commission via the ▇▇▇▇▇
system such statements and reports as are required to be filed by a company
registered under Section 12(b) of the Exchange Act, as if the Company were
a
company incorporated in the United States.
3.18.2 Form
6-K.
The Company shall, on the date hereof, retain its independent registered public
accounting firm to audit the financial statements of the Company as of the
Closing Date (“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the Offering. As
soon as the Audited Financial Statements become available, the Company shall
immediately file a Current Report on Form 6-K with the Commission, which Report
shall contain the Company’s Audited Financial Statements.
3.19 Corporate
Proceedings.
All corporate proceedings and other legal matters necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby shall
done
to the reasonable satisfaction to counsel for the Underwriters.
3.20 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 as set forth in the Trust Agreement and disclosed
in the Registration Statement, Sale, Preliminary Prospectus or 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.
3.21 Public
Announcements.
3.21.1 Business
Combination Announcement.
Within four (4) 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 Representatives announcing the consummation
of
the Business Combination and indicating that the Representatives were the
co-leading managing underwriters in the Offering. The Company shall supply
the Representatives with a draft of the Business Combination Announcement and
provide the Representatives with a reasonable opportunity to comment
thereon. The Company will not place the Business Combination Announcement
without the final approval of the Representatives, which such approval will
not
be unreasonably withheld.
3.21.2 Press
Releases.
The
Company agrees that it will not issue press releases or engage in any other
publicity, without the Representatives’ prior written consent (not to be
unreasonably withheld), for a period of ninety (90) days after the Closing
Date.
3.22 10b5-1
Purchase Agreement.
Infinity I-China Fund (Cayman), L.P., Infinity I-China Fund (Israel), L.P.
and
Infinity I-China Fund (Israel 2), L.P. (“Sponsors”)
have
entered into a letter agreement, in accordance with Rule 10b5-1 of the Exchange
Act, pursuant to which they, or their respective affiliates or limited partners,
will place limit orders for up to $5,000,000 of the Ordinary Shares commencing
the later of (i) ten Business Days after the Company files its Current Report
on
Form 6-K announcing the execution of a definitive agreement for a Business
Combination and (ii) 60 calendar days after the end of the “restricted period”
in connection with the Offering under Regulation M under the Exchange Act and
ending on the Business Day immediately preceding the meeting date for the
meeting of shareholders at which such Business Combination is to be approved.
These purchases will be made in accordance with Rule 10b-18 under the Act at
a
price equal to the per share amount held in the Trust Account (less taxes
payable) as reported in such Form 6-K and will be made by a broker dealer
mutually agreed upon by the Sponsors and the Representatives in such amounts
and
at such times as such broker dealer may determine, in its sole discretion,
so
long as the purchase price does not exceed the above-referenced per share
purchase price. In the event the Sponsors or their respective affiliates or
limited partners do not purchase $5,000,000 of the Ordinary Shares through
such
open market purchases, the Founders or their respective affiliates or limited
partners have agreed to purchase from the Company, in a private placement,
units
identical to the Units at a purchase price of $8.00 per unit until they have
spent an aggregate of $5,000,000 in the open market purchases described above
and such private placement.
18
3.23 Amendments
to Charter.
The Company covenants and agrees that it will not seek to amend or modify
articles [170] through [174] of its amended and restated Memorandum and Articles
of Association without holding a general meeting at which a quorum of 95% or
more of its Ordinary Shares are present in person or by proxy, and at least
66
2/3% of the Ordinary Shares present in person or by proxy at such meeting
approve an amendment thereto.
3.24 Private
Placement Proceeds.
Prior to the Closing Date, the Company shall deposit $1,500,000 of the proceeds
from the Private Placement in the Trust Account and shall provide the
Representatives with evidence of the same.
3.25 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
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 the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act 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.
3.26 Proposed
Acquisitions.
The
Company hereby agrees to give notice to the Representatives with respect to
any
proposed acquisitions, mergers, reorganizations or other similar
transactions.
3.27 Electronic
Prospectus.
The
Company shall cause to be prepared and delivered to the Representatives, at
its
expense, within one business day 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 Representatives, 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
Representatives, 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). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt of a request by an investor
or his or her representative within the period when a prospectus relating to
the
Units is required to be delivered under the Securities Act, the Company shall
transmit or cause to be transmitted promptly, without charge, a paper copy
of
the Prospectus.
3.28 Reservation
of Shares.
The
Company has reserved and will continue to reserve and keep available that
maximum number of its authorized but unissued securities which are issuable
upon
exercise of the Warrants and the Representatives’ Securities outstanding from
time to time.
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4.
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Conditions
of Underwriters’ Obligations.
|
The
obligations of the several Underwriters to purchase and pay for the 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
each of the Closing Date and the Option Closing Date, if any, to the accuracy
of
the statements of officers of the Company made pursuant to the provisions hereof
and to the performance by the Company of its obligations hereunder and to the
following conditions:
19
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 you, and, at each of the Closing Date and
the Option Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for 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 Loeb & Loeb,
counsel to the Underwriters.
4.1.2 FINRA
Clearance.
By the Effective Date, the Representatives shall have received clearance from
FINRA as to the amount of compensation allowable or payable to the Underwriters
as described in the Registration Statement.
4.1.3 No
Commission Stop Order.
At each
of the Closing Date and the Option 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 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
you
pursuant to Section 3.3 hereof shall have been issued on either on the Closing
Date or the Option Closing Date, and no proceedings for that purpose shall
have
been instituted or shall be contemplated.
4.1.5 The
OTC Bulletin Board.
The Securities shall have been admitted and approved for quotation on the OTC
Bulletin Board.
4.2 Company
Counsel Matters.
4.2.1 Closing
Date and Option Closing Date Opinion of Counsel.
On the Closing Date and the Option Closing Date, if any, the Representatives
shall have received the favorable opinion of (i) Ellenoff ▇▇▇▇▇▇▇▇ & Schole
LLP, (ii) ▇▇▇▇▇▇ & Calder and (iii) Chinese counsel to the Company, in each
case dated the Closing Date or the Option Closing Date, as the case may be,
addressed to the Representatives and in form and substance reasonably
satisfactory to Loeb & Loeb, covering the matters set forth on Appendices
A, B and C
hereto.
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 Loeb & Loeb) of other counsel
reasonably acceptable to Loeb & Loeb, familiar with the applicable laws, and
(ii) as to matters of fact, to the extent they deem proper, on certificates
or
other written statements of officers of the Company and officers of departments
of various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company, provided that copies of any such
statements or certificates shall be delivered to 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 each of the Closing Date and
the
Option Closing Date, if any, you shall have received a letter, addressed to
the
Representatives and in form and substance satisfactory in all respects
(including the non-material nature of the changes or decreases, if any, referred
to in clause (iii) below) to you and to Loeb & Loeb from ▇▇▇ ▇▇▇▇ dated,
respectively, as of the date of this Agreement and as of the Closing Date and
the Option Closing Date, if any:
20
(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 Preliminary
Prospectus, Sale Preliminary 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, the Sale Preliminary Prospectus and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published Regulations thereunder;
(iii) Stating
that, on the basis of their 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 Sale Preliminary 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 Sale Preliminary Prospectus and the
Prospectus, or (b) at a date not later than five days prior to the Effective
Date, Closing Date or Option Closing Date, as the case may be, there was any
change in the capital stock or long-term debt of the Company, or any decrease
in
the shareholders’ equity of the Company as compared with amounts shown in the
[ ,
2007] balance sheet included in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus, other than as set forth in or contemplated by
the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
or,
if there was any decrease, setting forth the amount of such decrease, and (c)
during the period from
[ ,
2007]
to a
specified date not later than five days prior to the Effective Date, Closing
Date or Option Closing Date, as the case may be, there was any decrease in
revenues, net earnings or net earnings per 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 the Sale Preliminary Prospectus
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 (including a break-down of commercial
papers and notes payable to banks);
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Sale Preliminary
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, since the Company’s incorporation, provided the Company’s
management with any written communication in accordance with Statement on
Auditing Standards No. 60 “Communication of Internal Control Structure Related
Matters Noted in an Audit,” in the Company’s internal controls;
and
21
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as
you
may reasonably request.
4.4 Officers’
Certificates.
4.4.1 Officers’
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representatives shall have received a certificate of the Company signed by
the
Chairman of the Board or the President and the Secretary or Assistant Secretary
of the Company (in their capacities as such), dated the Closing Date or the
Option Closing Date, as the case may be, respectively, to the effect that the
Company has performed all covenants and complied with all conditions required
by
this Agreement to be performed or complied with by the Company prior to and
as
of the Closing Date, or the Option Closing Date, as the case may be, and that
the conditions set forth in Section 4.5 hereof have been satisfied as of such
date and that, as of Closing Date and the Option Closing Date, as the case
may
be, the representations and warranties of the Company set forth in Section
2
hereof are true and correct. In addition, the Representatives will have
received such other and further certificates of officers of the Company (in
their capacities as such) as the Representatives may reasonably
request.
4.4.2 Secretary’s
Certificate.
At each of the Closing Date and the Option Date, if any, the Representatives
shall have received a certificate of the Company signed by the Secretary or
Assistant Secretary of the Company, dated the Closing Date or the Option Date,
as the case may be, respectively, certifying (i) that the Bylaws and Certificate
of Incorporation of the Company are true and complete, have not been modified
and are in full force and effect, (ii) that the resolutions relating to the
public offering contemplated by this Agreement are in full force and effect
and
have not been modified, (iii) all correspondence between the Company or its
counsel and the Commission, and (iv) as to the incumbency of the officers of
the
Company. The documents referred to in such certificate shall be attached
to such certificate.
4.5 No
Material Changes.
Prior to and on each of the Closing Date and the Option Closing Date, if any,
(i) there shall have been no material adverse change or development involving
a
prospective material adverse change in the condition or prospects or the
business activities, financial or otherwise, of the Company from the latest
dates as of which such condition is set forth in the Registration Statement,
the
Sale Preliminary Prospectus and the Prospectus, (ii) no action suit or
proceeding, at law or in equity, shall have been pending or threatened against
the Company or any Existing Shareholder before or by any court or federal or
state commission, board or other administrative agency wherein an unfavorable
decision, ruling or finding may materially adversely affect the business,
operations, prospects or financial condition or income of the Company, except
as
set forth in the Registration Statement, the Sale Preliminary Prospectus and
the
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 Sale Preliminary 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 neither the Registration
Statement, the Sale Preliminary Prospectus nor the Prospectus nor 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 light of the circumstances under which they
were
made, not misleading.
4.6 Delivery
of Agreements.
4.6.1 Effective
Date Deliveries.
On the Effective Date, the Company shall have delivered to the
Representatives executed copies of the Ancillary Agreements.
4.6.2 Closing
Date Deliveries.
On the Closing Date, the Company shall have delivered to the Representatives
executed copies of the Representatives’ Purchase Option.
4.7 Opinion
of Counsel for the Underwriters.
All proceedings taken in connection with the authorization, issuance or sale
of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to you and to Loeb & Loeb and you shall have received from
such counsel a favorable opinion, dated the Closing Date and the Option Closing
Date, if any, with respect to such matters as you may reasonably require.
On or prior to the Effective Date, the Closing Date and the Option Closing
Date,
as the case may be, counsel for the Underwriters shall have been furnished
such
documents, certificates and opinions as they may reasonably require for the
purpose of enabling them to review or pass upon the matters referred to in
this
Section 4.7, or in order to evidence the accuracy, completeness or satisfaction
of any of the representations, warranties or conditions herein
contained.
22
4.8 Secondary
Market Trading and Standard & Poor’s.
Unless the Securities are listed or quoted, as the case may be, on the New
York
Stock Exchange, the American Stock Exchange or the NASDAQ Global Market, the
Company (a) 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, (b) 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 Representatives;
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
and
(c) shall also take such other action as may be reasonably requested by the
Representatives to obtain a secondary market trading exemption in such other
states as may be requested by the Representatives.
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5.
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Indemnification.
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5.1 Indemnification
of Underwriters.
5.1.1 General.
Subject to the conditions set forth below, the Company agrees to indemnify
and
hold harmless each of the Underwriters, and each dealer selected by you that
participates in the offer and sale of the Securities (each a “Selected Dealer”)
and each of their respective directors, officers and employees and each person,
if any, who controls any such Underwriter (“Controlling Person”) within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all loss, liability, claim, damage and expense whatsoever (including
but
not limited to any and all legal or other expenses reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, whether arising out of any action between
any of the Underwriters and the Company or between any of the Underwriters
and
any third party or otherwise) to which they or any of them may become subject
under the Act, the Exchange Act or any other statute or at common law or
otherwise or under the laws of foreign countries, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in
(i) any Preliminary Prospectus, the Registration Statement, Sale Preliminary
Prospectus or the Prospectus (as from time to time each may be amended and
supplemented); (ii) any materials or information provided to investors by,
or
with the approval of, the Company in connection with the marketing of the
offering of the Securities, including any “road show” or investor presentations
made to investors by the Company (whether in person or electronically); (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 state
securities commission or agency, NASDAQ or any securities exchange; or (iv)
any
post effective amendments to the Registration Statement or Prospectus or new
Registration Statement or Prospectus filed by the Company with the Commission
any state securities commission or agency, NASDAQ or any securities exchange
in
which is included any of the Representatives’ Securities, or the omission or
alleged omission from any Preliminary Prospectus, the Registration Statement,
Sale Preliminary Prospectus or the Prospectus or subsequent filing by the
Company under clause (iv) above 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, Sale Preliminary Prospectus or Prospectus, or any amendment or
supplement thereof, or in any application, as the case may be. With
respect to any untrue statement or omission or alleged untrue statement or
omission made in the Preliminary Prospectus, the indemnity agreement contained
in this paragraph shall not inure to the benefit of any Underwriter to the
extent that any loss, liability, claim, damage or expense of such Underwriter
results from the fact that a copy of the Prospectus was not given or sent to
the
person asserting any such loss, liability, claim or damage at or prior to the
written confirmation of sale of the Securities to such person as required by
the
Act and the Regulations, and if the untrue statement or omission has been
corrected in the Prospectus, unless such failure to deliver the Prospectus
was a
result of non-compliance by the Company with its obligations under Section
3.4
hereof. The Company agrees promptly to notify the Representatives 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 Registration Statement, Sale
Preliminary Prospectus or Prospectus.
23
5.1.2 Procedure.
If any action is brought against an Underwriter, a Selected Dealer or a
controlling person in respect of which indemnity may be sought against the
Company pursuant to Section 5.1.1, such Underwriter or Selected Dealer shall
promptly notify the Company in writing of the institution of such action and
the
Company shall assume the defense of such action, including the employment and
fees of counsel (subject to the reasonable approval of such Underwriter or
Selected Dealer, as the case may be) and payment of actual expenses. Such
Underwriter, Selected Dealer or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses
of
such counsel shall be at the expense of such Underwriter, Selected Dealer or
controlling person unless (i) the employment of such counsel at the expense
of
the Company shall have been authorized in writing by the Company in connection
with the defense of such action, or (ii) the Company shall not have employed
counsel to have charge of the defense of such action, or (iii) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right
to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events the reasonable fees and expenses of not more
than one additional firm of attorneys selected by the Underwriter, Selected
Dealer and/or controlling person shall be borne by the Company.
Notwithstanding anything to the contrary contained herein, if the Underwriter,
Selected Dealer or controlling person shall assume the defense of such action
as
provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably
withheld.
5.2 Indemnification
of the Company.
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, officers and employees and agents who
control the Company within the meaning of Section 15 of the Act or Section
20 of
the Exchange Act against any and all loss, liability, claim, damage and expense
described in the foregoing indemnity from the Company to the several
Underwriters, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in any Preliminary
Prospectus, the Registration Statement, Sale Preliminary Prospectus or
Prospectus or any amendment or supplement thereto or in any application, in
reliance upon, and in strict conformity with, written information furnished
to
the Company with respect to such Underwriter by or on behalf of the Underwriter
expressly for use in such Preliminary Prospectus, the Registration Statement,
Sale Preliminary Prospectus or Prospectus or any amendment or supplement thereto
or in any such application. In case any action shall be brought against
the Company or any other person so indemnified based on any Preliminary
Prospectus, the Registration Statement, Sale Preliminary Prospectus or
Prospectus or any amendment or supplement thereto or any application, and in
respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company, and the
Company and each other person so indemnified shall have the rights and duties
given to the several Underwriters by the provisions of Section
5.1.2.
5.3 Contribution.
5.3.1 Contribution
Rights.
In order to provide for just and equitable contribution under the Act in any
case in which (i) any person entitled to indemnification under this Section
5
makes claim for indemnification pursuant hereto but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding
the
fact that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be required on
the
part of any such person in circumstances for which indemnification is provided
under this Section 5, then, and in each such case, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial offering price appearing thereon and the Company
is responsible for the balance; provided, that, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect the relative fault
of
the Company and the Underwriters in connection with the actions or omissions
which resulted in such loss, claim, damage, liability or action, as well as
any
other relevant equitable considerations. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the provisions of this Section
5.3.1, no Underwriter shall be required to contribute any amount in excess
of
the amount by which the total price at which the Public Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to
pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section, each director, officer and employee of an Underwriter
or the Company, as applicable, and each person, if any, who controls an
Underwriter or the Company, as applicable, within the meaning of Section 15
of
the Act shall have the same rights to contribution as the Underwriters or the
Company, as applicable.
24
5.3.2 Contribution
Procedure.
Within fifteen days after receipt by any party to this Agreement (or its
representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of
the commencement thereof, but the omission to so notify the contributing party
will not relieve it from any liability which it may have to any other party
other than for contribution hereunder. In case any such action, suit or
proceeding is brought against any party, and such party notifies a contributing
party or its representative of the commencement thereof within the aforesaid
fifteen days, the contributing party will be entitled to participate therein
with the notifying party and any other contributing party similarly
notified. Any such contributing party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such 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. The Underwriters’ obligations to
contribute pursuant to this Section 5.3 are several and not joint.
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6.
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Default
by an Underwriter.
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6.1 Default
Not Exceeding 10% of Firm Units or Option Units.
If
any Underwriter or Underwriters shall default in its or their obligations to
purchase the Firm Units or the Option Units, if the Over-Allotment Option is
exercised, hereunder, and if the number of the Firm Units or Option Units with
respect to which such default relates does not exceed in the aggregate 10%
of
the number of Firm Units or Option Units that all Underwriters have agreed
to
purchase hereunder, then such Firm Units or Option Units to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion
to
their respective commitments hereunder.
6.2 Default
Exceeding 10% of Firm Units or Option Units.
In
the event that the default addressed in Section 6.1 above relates to more than
10% of the Firm Units or Option Units, you may in your discretion arrange for
yourself or for another party or parties to purchase such Firm Units or Option
Units to which such default relates on the terms contained herein. If
within one Business Day after such default relating to more than 10% of the
Firm
Units or Option Units you do not arrange for the purchase of such Firm Units
or
Option Units, then the Company shall be entitled to a further period of one
Business Day within which to procure another party or parties satisfactory
to
you to purchase said Firm Units or Option Units on such terms. In the
event that neither you nor the Company arrange for the purchase of the Firm
Units or Option Units to which a default relates as provided in this Section
6,
this Agreement will be terminated by you or the Company without liability on
the
part of the Company (except as provided in Sections 3.11.1 and 5 hereof) or
the
several Underwriters (except as provided in Section 5 hereof); provided,
however, that if such default occurs with respect to the Option Units, this
Agreement will not terminate as to the Firm Units; and provided further that
nothing herein shall relieve a defaulting Underwriter of its liability, if
any,
to the other several Underwriters and to the Company for damages occasioned
by
its default hereunder.
25
6.3 Postponement
of Closing Date.
In
the event that the Firm Units or Option Units to which the default relates
are
to be purchased by the non-defaulting Underwriters, or are to be purchased
by
another party or parties as aforesaid, you or the Company shall have the right
to postpone the Closing Date or Option Closing Date for a reasonable period,
but
not in any event exceeding five Business Days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement, the Sale
Preliminary Prospectus or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment to the
Registration Statement or the Prospectus that in the opinion of counsel for
the
Underwriters may thereby be made necessary. The term “Underwriter”
as
used
in this Agreement shall include any party substituted under this Section 6
with
like effect as if it had originally been a party to this Agreement with respect
to such Securities.
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7.
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Right
to Appoint Observer.
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Until
the
consummation of a Business Combination, upon notice from the Representatives
to
the Company, the Representatives shall have the right to send a representative
(who need not be the same individual from meeting to meeting) to observe each
meeting of the Board of Directors of the Company; provided that such
representative shall sign a Regulation FD compliant confidentiality agreement
which is reasonably acceptable to the Representatives and their counsel in
connection with such representative’s attendance at meetings of the Board of
Directors; and provided further that upon written notice to the Representatives,
the Company may exclude the representative from meetings where, in the written
opinion of counsel for the Company, the representative’s presence would destroy
the attorney-client privilege. The Company agrees to give the
Representatives written notice of each such meeting and to provide the
Representatives with an agenda and minutes of the meeting no later than it
gives
such notice and provides such items to the other directors and to reimburse
the
representative of the Representatives for his or her reasonable out-of-pocket
expenses incurred in connection with his or her attendance at the meeting,
including but not limited to, food, lodging and transportation.
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8.
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Additional
Covenants.
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8.1 Additional
Shares or Options.
The Company hereby agrees that until the consummation of a Business Combination,
it shall not issue any Ordinary Shares (except with respect to any exercise
of
Warrants) or any options or other securities convertible into Ordinary Shares,
or any shares of preferred stock or other Securities of the Company which
participate or may participate in any manner in the Trust Account or which
vote
as a class with the Ordinary Shares on a Business Combination.
8.2 Insider
Letters; Warrant Purchase Agreement; Trust Agreement.
The Company shall not take any action or omit to take any action which would
cause a breach of any of the Insider Letters or the Warrant Purchase Agreement
and will not allow any amendments to, or waivers of, the Insider Letters, the
Warrant Purchase Agreement or the Trust Agreement without the prior written
consent of the Representatives. Further the Company shall take such actions
as
may be reasonably necessary to enforce the provisions of the Insider Letters
in
the event of a breach thereof by the Existing Shareholder, director and/or
officer party thereto.
8.3 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 Memorandum and Articles
of
Association. Prior to the consummation of a Business Combination, the
Company will not amend its Memorandum and Articles of Association without the
prior written consent of the Representatives.
26
8.4 Acquisition/Liquidation
Procedure.
The Company agrees: (i) prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s shareholders for their approval
(“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
shareholder approval under the laws of the Cayman Islands; and (ii) in the
event
that the Company does not effect a business combination within twenty-four
months from the consummation of the Offering (the “Termination
Date”),
this
shall trigger an automatic winding-up of the Company and the trust account
will
be liquidated to holders of IPO Shares in the manner described in the Sale
Preliminary Prospectus and the Prospectus as soon as reasonably practicable,
and
subject to the requirements of the laws of the Cayman Islands. For
purposes of this Section 8.4, the term “IPO
Shares”
means
the Ordinary Shares included in the Public Securities.
8.4.1 Distribution
upon Liquidation.
Upon
liquidation of the Trust Account, subject to the requirements of the laws of
the
Cayman Islands, the Company will distribute only to the holders of IPO Shares
an
aggregate sum equal to the Company’s Liquidation Value, which sum shall be
distributed pro rata among the holders of the IPO Shares. The Company’s
“Liquidation
Value”
means:
(i) all of the all principal and accrued interest contained within the Trust
Account, less any amounts previously distributed to the Company out of the
interest earned on the Trust Account pursuant to the terms of the Trust
Agreement (after payment of, or provision for, applicable taxes and claims of
creditors), plus (ii) all cash and other liquid assets (which shall be reduced
to cash as part of the Company’s winding up) then held by the Company outside of
the Trust Account, all as distributed in amounts to the holders as determined
by
AST, as trustee of the Trust Account. Only holders of IPO Shares as of the
record date for the distribution shall be entitled to receive liquidating
distributions with respect to the IPO Shares they beneficially own and the
Company shall pay no liquidating distributions with respect to any other shares
of capital stock of the Company, including the Ordinary Shares held by the
Existing Shareholders prior to the Offering (but shall include Ordinary Shares
purchased by Existing Shareholders after the Offering).
8.4.2 Vote
by Existing Shareholders.
With
respect to the Business Combination Vote, the Company shall cause all of the
Existing Shareholders to vote (i) the Ordinary Shares owned by them
immediately prior to this Offering in accordance with the vote of the holders
of
a majority of the IPO Shares present, in person or by proxy, at a meeting of
the
Company’s shareholders called for such purpose and (ii) the Ordinary Shares
acquired by them in connection with or following this Offering in favor of
any
Business Combination, at a meeting of the Company’s shareholders called for such
purpose.
8.4.3 Shareholder
Redemption Rights.
At the
time the Company seeks approval of any potential Business Combination (prior
to
the confirmation of its initial Business Combination), the Company will offer
each of the holders of the IPO Shares the right to redeem their IPO Shares
into
a pro rata share of the Trust Account (the “Conversion
Price”).
If holders of less than 40% in interest of the Company’s Ordinary Shares vote
against such approval of a Business Combination, the Company may, but will
not
be required to, proceed with such Business Combination. If the Company
elects to so proceed, it will redeem Ordinary Shares, based upon the Conversion
Price, from those holders of Ordinary Shares who affirmatively requested such
redemption and who voted against the Business Combination as provided under
the
Cayman Islands. If holders of 40% or more in interest of the Ordinary
Shares vote against approval of any potential Business Combination, the Company
will not proceed with such Business Combination and will liquidate.
8.5 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 3a-51-1 under the Exchange Act during such
period.
27
8.6 Affiliated
Transactions.
Except as disclosed on the Registration Statement, the Company shall cause
each
of the Existing Shareholders to agree that, in order to minimize potential
conflicts of interest which may arise from multiple affiliations, the Existing
Shareholders 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 Company or until such time as
the
Existing Shareholders cease to be an officer or director of the Company, subject
to any pre-existing fiduciary or contractual obligations the Existing
Shareholders might have.
8.7 Target
Net Assets.
The Company agrees that its initial Business Combination must be with one or
more Target Businesses that have an aggregate fair market value equal to at
least 80% of the amount in the Company’s Trust Account (less Deferred Fees,
including interest thereon, held in the Trust Account) at the time of such
Business Combination. The fair market value of each Target Business must
be determined by the Board of Directors of the Company based upon standards
generally accepted by the financial community, such as actual and potential
sales, earnings and cash flow and book value. If the Board of Directors of
the Company is not able to independently determine that the Target Business
has
a fair market value of at least 80% of the Company’s net assets held in trust,
net of taxes, at the time of such transaction, or if the target business is
affiliated with any of the Existing Shareholders, the Company will obtain an
opinion from an unaffiliated, independent investment banking firm which is
a
member of FINRA with respect to the satisfaction of such criteria. The
Company is not required to obtain an opinion from an investment banking firm
as
to the fair market value if the Company’s Board of Directors independently
determines that the Target Business does have sufficient fair market
value.
8.8 Trust
Account Waiver Acknowledgments.
The Company hereby agrees that it will not commence its due diligence
investigation of any operating business or businesses which the Company seeks
to
acquire (each, a “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 $285,075,000 (without giving effect to any exercise of the
Over-allotment Option) for the benefit of the public shareholders and that,
except for a portion of 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 redemption of their shares or the
dissolution and liquidation of the Trust Account as part of the Company’s plan
of dissolution and liquidation or (ii) 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 Exhibits
A and B,
respectively.
8.9 Proxy
and Other Information.
The Company shall provide counsel to the Representatives with ten copies of
all
proxy information and all related material filed with the commission in
connection with a Business Combination concurrently with such filing with the
commission.
In
addition, the Company shall furnish any other state in which its initial public
offering was registered, such information as may be requested by such
state.
8.10 Preliminary
Proxy Materials.
Notwithstanding the fact that the Company, as a “foreign private issuer” (as
defined in Rule 3b-4 of the Exchange Act) is not required to file with the
Commission preliminary proxy solicitation materials regarding the Business
Combination in accordance with the proxy rules promulgated under the Exchange
Act which prescribe the form and content of proxy statements (“Proxy
Rules”),
the
Company hereby undertakes that it will provide its shareholders such materials
that comply in form and content with the requirements of the Proxy
Rules.
28
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9.
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Representations
and Agreements to Survive Delivery.
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Except
as
the context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements as of the Closing Dates and such representations, warranties
and
agreements of the Underwriters and the Company, including the indemnity
agreements contained in Section 5 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, the Company or any controlling person, and shall survive
termination of this Agreement or the issuance and delivery of the Securities
to
the several Underwriters until the earlier of the expiration of any applicable
statute of limitations and the seventh anniversary of the later of the Closing
Date or the Option Closing Date, if any, at which time the representations,
warranties and agreements shall terminate and be of no further force and
effect.
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10.
|
Effective
Date of This Agreement and Termination
Thereof.
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10.1 Effective
Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
10.2 Termination.
You shall have the right to terminate this Agreement at any time prior to the
Closing Date, (i) if any domestic or international event or act or occurrence
has materially disrupted, or in your opinion will in the immediate future
materially disrupt, general securities markets in the United States; or (ii)
if
trading on the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Global Market, the NASDAQ Capital Market 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 American Stock Exchange, the NASDAQ Global
Market, the NASDAQ Capital Market or on the OTC Bulletin Board (or successor
trading market) or by order of the Commission or any other government authority
having jurisdiction, or (iii) if the United States shall have become involved
in
a new war or an increase in major hostilities, or (iv) if a banking moratorium
has been declared by a New York State or federal authority, or (v) if a
moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities 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 your 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 either of the Representatives shall have become aware after the date
hereof of such a material adverse change in the conditions or prospects of
the
Company, or such adverse material change in general market conditions, including
without limitation as a result of terrorist activities after the date hereof,
as
in the Representatives’ judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the Units or to enforce contracts made by
the
Underwriters for the sale of the Securities.
10.3 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 3.11 hereof.
10.4 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.
|
11.
|
Miscellaneous.
|
11.1 Notices.
All communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered or telecopied and confirmed
and shall be deemed given when so delivered or telecopied and confirmed or
if
mailed, five business days after such mailing:
29
If
to the
Representatives:
▇▇▇▇▇▇
▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇
Facsimile:
(212)
and
Legend
Merchant Group, Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Copy
to:
Loeb
& Loeb LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If
to the
Company:
▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇
Attn:
Chief Executive Officer
Copy
to:
Ellenoff
▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
11.2 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.
11.3 Amendment.
This Agreement may only be amended by a written instrument executed by each
of
the parties hereto.
11.4 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.
30
11.5 Binding
Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Representatives, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have
or
be construed to have any legal or equitable right, remedy or claim under or
in
respect of or by virtue of this Agreement or any provisions herein contained.
This agreement and all conditions and provisions hereof are intended to be
for
the sole and exclusive benefit of the parties hereto and said controlling
persons and their respective successors, officers, directors, heirs and legal
representatives, and it is not for the benefit of any other person. The
term “successors and assigns” shall not include a purchaser, in its capacity as
such, of securities from any of the Underwriters. The Company acknowledges
and agrees that: (i) the sale and issuance of the securities pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the
Underwriters; (ii) in connection therewith and with the process leading to
the
offering, the Underwriters are acting solely as a principal and not the agent
or
fiduciary of the Company; (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto, including any negotiation
related to the pricing of the securities; and (iv) the Company has consulted
its
own legal and financial advisors to the extent it has deemed appropriate in
connection with this Agreement and the offering.
11.6 Governing
Law.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflicts
of
law principles that would result in the application of the substantive laws
of
another jurisdiction.
11.7 Jurisdiction;
Service. Any
claim arising out of or relating to this Agreement shall be resolved solely
in
the Supreme Court of the State of New York, New York County or the United States
District Court for the Southern District of New York, City and State of New
York, and appellate courts from any thereof (“Courts”).
The
Company and the Representatives hereby irrevocably (a) submit to the
jurisdiction of the foregoing Courts and (b) waive any objection which either
party may have at any time to the laying on or of venue of any suit, action
or
proceeding arising out of or relating to this Agreement brought in any such
Court and (c), waive any claim that any such suit, action or proceeding brought
in any such Court has been brought in an inconvenient forum, and (d) waive
any
objection in any such suit to discovery and/or disclosure under the applicable
federal and local rules of civil procedure or the New York State civil practice
laws and rules based upon the purported confidentiality of any document or
the
disclosure of any information, including but not limited to the identification
of relevant individuals and/or businesses, under the laws of the Cayman Islands.
The Company irrevocably appoints EG&S as its agent for service of process in
the State of New York to receive, for the Company on its behalf, service of
process in any proceeding. Any such process or summons to be served upon the
Company may be served by personal delivery, by mail, or in any other manner
as
may be permitted by the rules of the Court in which the action, suit or
proceeding is commenced, upon the Company c/o Ellenoff ▇▇▇▇▇▇▇▇ & Schole
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇. Such delivery shall be deemed personal service and shall be legal
and
binding upon the Company in any action, proceeding or claim. The Company agrees
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attorneys’ fees and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
11.8 JURY
TRIAL WAIVER.
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.
11.9 Execution
in Counterparts.
This Agreement may be executed in one or more original or facsimile (or other
electronic transmission) 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.
31
11.10 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 affect 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.
11.11 No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
Underwriters in connection with the offering of the Company’s securities.
The Company further acknowledges that the Underwriters are 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 Underwriters
act or be responsible as a fiduciary to the Company, its management,
shareholders, creditors or any other person in connection with any activity
that
the Underwriters may undertake or have undertaken in furtherance of the offering
of the Company’s securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim 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 Underwriters 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 Underwriters 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 Underwriters 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.
[Remainder
of page intentionally left blank]
32
If
the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
|
Very
truly yours,
|
||||
|
INFINITY
I-CHINA ACQUISITION
CORPORATION
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
Accepted
on the date first
|
||||
|
above
written.
|
||||
|
▇▇▇▇▇▇
▇▇▇▇▇▇ & CO. INC.
|
||||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
LEGEND
MERCHANT GROUP, INC.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
33
SCHEDULE
I
4,500,000
Units
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇ & Co. Inc.
|
||
|
Legend
Merchant Group, Inc.
|
||
APPENDIX
A
|
1.
|
The
Company has been duly organized and is validly existing as a corporation
and is in good standing under the laws of its place of
incorporation. The Company is duly qualified and licensed and in
good standing as a foreign corporation in each jurisdiction in which
its
ownership or leasing of any properties or the character of its operations
requires such qualification or licensing, except where the failure
to
qualify would not have a material adverse effect on the assets, business
or operations of the Company.
|
|
2.
|
All
issued and outstanding securities of the Company (including, without
limitation, the Insider Warrants) have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof
are not
subject to personal liability by reason of being such holders; and
none of
such securities were issued in violation of the preemptive rights
of any
shareholder of the Company arising by operation of law or under the
Amended and Restated Memorandum and Articles of Association (“Articles”)
of the Company. The offers and sales of the outstanding Ordinary
Shares prior to the Offering were at all relevant times either registered
under the Act or exempt from such registration requirements. The
authorized and, to such counsel’s knowledge, outstanding capital stock of
the Company is as set forth in the
Prospectus.
|
|
3.
|
The
Securities have been duly authorized and, when issued and paid for,
will
be validly issued, fully paid and non-assessable; the holders thereof
are
not and will not be subject to personal liability by reason of being
such
holders. The Securities are not and will not be subject to the
preemptive rights of any holders of any security of the Company arising
by
operation of law or under the Articles of the Company. When issued,
the Representatives’ Purchase Option, the Representatives’ Warrants and
the Warrants will constitute valid and binding obligations of the
Company
to issue and sell, upon exercise thereof and payment therefor, the
number
and type of securities of the Company called for thereby and such
Warrants, the Representatives’ Purchase Option, and the Representatives’
Warrants, when issued, in each case, are enforceable against the
Company
in accordance with their respective terms, except (a) as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or
similar laws affecting creditors’ rights generally, (b) as enforceability
of any indemnification or contribution provision may be limited under
the
federal and state securities laws, and (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may
be
subject to the equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. A sufficient
number of Ordinary Shares have been reserved for issuance upon exercise
of
the Warrants, the Representatives’ Purchase Option and the
Representatives’ Warrants. The certificates representing the Securities
are in due and proper form.
|
|
4.
|
The
Insider Warrants constitute valid and binding obligations of the
Company
to issue and sell, upon exercise thereof and payment therefor, the
number
and type of securities of the Company called for thereby, and such
Insider
Warrants are enforceable against the Company in accordance with their
respective terms, except: (i) as such enforceability may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (ii) as enforceability of any indemnification
or contribution provision may be limited under federal and state
securities laws; and (iii) that the remedy of specific performance
and
injunctive and other forms of equitable relief may be subject to
the
equitable defenses and to the discretion of the court before which
any
proceeding therefor may be brought. A sufficient number of Ordinary
Shares have been reserved for issuance upon exercise of the Insider
Warrants. The Ordinary Shares underlying the Insider Warrants will,
upon exercise of the Warrants and payment of the exercise price thereof,
be duly and validly issued, fully paid and non-assessable and will
not
have been issued in violation of or subject to preemptive or, to
such
counsel’s knowledge, similar rights that entitle or will entitle any
person to acquire any securities from the Company upon issuance
thereof.
|
|
5.
|
This
Agreement, the Warrant Agreement, the Services Agreement, the Trust
Agreement, the Escrow Agreement and the Warrant Purchase Agreement
have
each been duly and validly authorized and, when executed and delivered
by
the Company, constitute, and the Representatives’ Purchase Option has been
duly and validly authorized by the Company and, when executed and
delivered, will constitute, the valid and binding obligations of
the
Company, enforceable against the Company in accordance with their
respective terms, except (a) as such enforceability may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (b) as enforceability of any indemnification
or contribution provisions may be limited under the federal and state
securities laws, and (c) that the remedy of specific performance
and
injunctive and other forms of equitable relief may be subject to
the
equitable defenses and to the discretion of the court before which
any
proceeding therefor may be brought.
|
|
6.
|
The
execution, delivery and performance of this Agreement and the Ancillary
Agreements and compliance by the Company with the terms and provisions
thereof and the consummation of the transactions contemplated thereby,
and
the issuance and sale of the Securities, do not and will not, with
or
without the giving of notice or the lapse of time, or both, (a) to
such
counsel’s knowledge, conflict with, or result in a breach of, any of the
terms or provisions of, or constitute a default under, or result
in the
creation or modification of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company pursuant
to the terms of, any mortgage, deed of trust, note, indenture, loan,
contract, commitment or other agreement or instrument filed as an
exhibit
to the Registration Statement, (b) result in any violation of the
provisions of the Articles of the Company, or (c) to such counsel’s
knowledge, violate any United States statute or any judgment, order
or
decree, rule or regulation applicable to the Company of any court,
United
States federal, state or other regulatory authority or other governmental
body having jurisdiction over the Company, its properties or
assets.
|
|
7.
|
The
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
and any post-effective amendments or supplements thereto (other than
the
financial statements included therein, as to which no opinion need
be
rendered) each as of their respective dates appeared on their face
to
comply as to form in all material respects with the requirements
of the
Act and Regulations. The Securities and all other securities issued
or issuable by the Company conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus. The descriptions in the Registration Statement, the Sale
Preliminary Prospectus and in the Prospectus, insofar as such statements
constitute a summary of statutes, legal matters, contracts, documents
or
proceedings referred to therein, fairly present in all material respects
the information required to be shown with respect to such statutes,
legal
matters, contracts, documents and proceedings, and such counsel does
not
know of any statutes or legal or governmental proceedings required
to be
described in the Sale Preliminary Prospectus and the Prospectus that
are
not described in the Registration Statement, the Sale Preliminary
Prospectus or the Prospectus or included as exhibits to the Registration
Statement that are not described or included as
required.
|
|
8.
|
The
Registration Statement is effective under the Act. To such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been
instituted or are pending or threatened under the Act or applicable
state
securities laws.
|
|
9.
|
To
such counsel’s knowledge, there is no action, suit or proceeding before or
by any court of governmental agency or body, domestic or foreign,
now
pending, or threatened against the Company that is required to be
described in the Registration
Statement.
|
|
10.
|
The
statements under the subheading “United States Federal Income Taxation”
under the caption “Taxation”, insofar as such statements constitute a
summary of the legal matters, agreements, documents or proceedings
referred to therein, fairly and accurately present the information
called
for with respect to such legal matters, agreements, documents and
proceedings.
|
The
opinion of counsel shall further include a statement to the effect that such
counsel has participated in conferences with officers and other representatives
of the Company, the Underwriters and the independent registered public
accounting firm of the Company, at which conferences the contents of the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
contained therein and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus contained therein
(except as otherwise set forth in the foregoing opinion), solely on the basis
of
the foregoing without independent check and verification, no facts have come
to
the attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto, at the time the Registration Statement
or
amendment became effective, contained an untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading or the Prospectus or any amendment
or
supplement thereto, at the time they were filed pursuant to Rule 424(b) or
at
the date of such counsel’s opinion, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express
no
opinion with respect to the financial information and statistical data and
information included in the Registration Statement, the Sale Preliminary
Prospectus or the Prospectus).
APPENDIX
B
1. 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, with
full
power and authority to own its properties and conduct its business as described
in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus.
2. All
issued and outstanding securities of the Company (including, without limitation,
the Insider Warrants) have been duly authorized and validly issued and are
fully
paid and non-assessable; the holders thereof are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any shareholder of the Company
arising by operation of law or under the Amended and Restated Memorandum and
Articles of Association (“Articles”) of the Company. The authorized and
outstanding capital stock of the Company is as set forth in the
Prospectus.
3. The
Securities have been duly authorized and, when issued and paid for by the
Underwriters pursuant to 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 arising by operation of law or under the Articles of the Company or,
to
such Counsel’s knowledge, similar rights that entitle or will entitle any person
to acquire any security from the Company upon issuance or sale thereof. When
issued, the Representatives’ Purchase Option, the Representatives’ Warrants and
the Warrants will constitute valid and binding obligations of the Company to
issue and sell, upon exercise thereof and payment therefor, the number and
type
of securities of the Company called for thereby and such Warrants,
Representatives’ Purchase Option, and Representatives’ Warrants, when issued, in
each case, are enforceable against the Company in accordance with their
respective terms, except (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (b) as enforceability of any indemnification or contribution
provision may be limited under the laws of the Cayman Islands, and (c) that
the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought. A sufficient number
of Ordinary Shares have been reserved for issuance upon exercise of the
Warrants, the Representatives’ Purchase Option and the Representatives’
Warrants. The certificates representing the Securities are in due and proper
form. The Ordinary Shares underlying the Warrants included in the Securities
will, upon exercise of such Warrants and payment of the exercise price thereof,
be duly and validly issued, fully paid and non-assessable and will not have
been
issued in violation of or subject to preemptive or, to such counsel’s knowledge,
similar rights that entitle or will entitle any person to acquire any securities
from the Company upon issuance thereof.
4. The
Insider Warrants constitute valid and binding obligations of the Company to
issue and sell, upon exercise thereof and payment therefor, the number and
type
of securities of the Company called for thereby, and such Insider Warrants
are
enforceable against the Company in accordance with their respective terms,
except: (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (b) as
enforceability of any indemnification or contribution provision may be limited
under the laws of the Cayman Islands; and (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. A sufficient number of Ordinary Shares
have
been reserved for issuance upon exercise of the Insider Warrants. The Ordinary
Shares underlying the Insider Warrants will, upon exercise of the Insider
Warrants and payment of the exercise price thereof, be duly and validly issued,
fully paid and non-assessable and will not have been issued in violation of
or
subject to preemptive or, to such counsel’s knowledge, similar rights that
entitle or will entitle any person to acquire any securities from the Company
upon issuance thereof.
5. The
Company has full right, power and authority to execute and deliver this
Agreement and the Ancillary Agreements and to perform its obligations
thereunder, and all corporate action required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the Ancillary
Agreements and consummation of the transactions contemplated by this Agreement,
the Registration Statement, the Sale Preliminary Prospectus and the Prospectus
and as described in the Registration Statement, the Sale Preliminary Prospectus
and the Prospectus have been duly and validly taken.
6. The
Insider Letters, the Warrant Purchase Agreement, and the Escrow Agreement have
been duly authorized, executed and delivered by the Initial Shareholders and/or
officers and directors of the Company (or if applicable, their affiliates)
party
thereto constitute constitute, the valid and binding obligations of such
persons, enforceable against them in accordance with their respective terms,
except (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (b) as
enforceability of any indemnification or contribution provisions may be limited
under the laws of the Cayman Islands, and (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
7. This
Agreement and the Ancillary Agreements other than the Representatives’ Purchase
Option have each been duly and validly authorized and, when executed and
delivered by the Company, constitute, and the Representatives’ Purchase Option
has been duly and validly authorized by the Company and, when executed and
delivered, will constitute, the valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally, (b) as
enforceability of any indemnification or contribution provisions may be limited
under the laws of the Cayman Islands, and (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
8. The
execution, delivery and performance of this Agreement and the Ancillary
Agreements, the issuance and sale of the Securities and the Insider Warrants,
the consummation of the transactions contemplated hereby and thereby and
compliance by the Company with the terms and provisions hereof and thereof,
do
not and will not, with or without the giving of notice or the lapse of time,
or
both, (a) conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, or result in the creation or
modification of any lien, security interest, charge or encumbrance upon any
of
the properties or assets of the Company pursuant to the terms of, any mortgage,
deed of trust, note, indenture, loan, contract, commitment or other agreement
or
instrument filed as an exhibit to the Registration Statement, (b) result in
any
violation of the provisions of the Articles of the Company, or (c) violate
any
statute or any judgment, order or decree, rule or regulation of the Cayman
Islands applicable to the Company of any court or other regulatory authority
or
other governmental body of the Cayman Islands having jurisdiction over the
Company, its properties or assets.
8. Such
counsel has no reason to believe that on the Effective Date the Registration
Statement contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading and that the Sale Preliminary Prospectus
or
Prospectus, as of their respective dates and the Closing Date contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading.
9. No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any judicial, regulatory or other
legal or governmental agency or body of the Cayman Islands is required for
the
execution, delivery and performance of this Agreement or consummation of the
transactions contemplated by this Agreement, the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus.
10. The
statements under: (i) the caption “Description of Securities,” (ii) the caption
“Cayman Islands Exempted Company Considerations”; (iii) the risk factors
captioned “Risk Factors-Risks Associated With Our Business-Being a foreign
private issuer exempts us from certain Securities and Exchange Commission
requirements that provide shareholders the protection of information that must
be made available to shareholders of United States public companies, including
with respect to our business combination,” “Risk Factors—Risks Associated with
International Operations—You may face difficulties in protecting your interests,
and your ability to protect your rights through the U.S. federal courts may
be
limited, because we are incorporated under Cayman Islands law.,” and “Risk
Factors—Risks Associated with International Operations—Under Cayman Islands law,
the requirements and restrictions relating to this offering contained in our
amended and restated Memorandum and Articles of Association may be amended,
which could reduce or eliminate the protection afforded to our shareholders
by
such requirements and restrictions”, “Risk Factors—Risks Associated with
International Operations-There are certain aspects of Cayman Islands law which
may impair our ability to structure and effect certain business combination
structures”, “Risk Factors—Risks Associated with International Operations—We may
become subject to taxation in the Cayman Islands which would negatively affect
our results”; and (iv) the statement under the subheading “Cayman Islands
Taxation” under the caption “Taxation”, insofar as such statements constitute a
summary of the legal matters, agreements, documents or proceedings referred
to
therein, fairly and accurately present the information called for with respect
to such legal matters, agreements, documents and proceedings.
11. No
stamp
or other issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the underwriters
to
the Cayman Islands or to any political subdivision or taxing authority thereof
or therein in connection with the sale and delivery by the Company of the Units
to or for the respective accounts of the Underwriters or the sale or delivery
by
the Underwriters of the Units to the initial purchasers thereof.
12. All
dividends and other distributions declared and payable on the Ordinary Shares
of
the Company may under the laws and regulations of the Cayman Islands be paid
in
United States dollars and may be freely transferred out of the Cayman Islands,
and all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the Cayman Islands
and are otherwise free and clear of any other tax, withholding or deduction
in
or without the necessity of obtaining any consents, approvals, authorizations,
orders, licenses, registrations, clearances and qualifications of or with any
governmental agency or body in the Cayman Islands.
13. Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, except as set
forth in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus, to the best of our knowledge the Company has not paid any dividends
on its capital stock.
14. To
such
counsel’s knowledge, there is no action, suit or proceeding before or by any
court of the Cayman Islands, now pending, or threatened against the Company
that
is required to be described in the Registration Statement.
The
opinion of counsel shall further include a statement to the effect that such
counsel has participated in conferences with officers and other representatives
of the Company, the Underwriters and the independent registered public
accounting firm of the Company, at which conferences the contents of the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
contained therein and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus contained therein
(except as otherwise set forth in the foregoing opinion), solely on the basis
of
the foregoing without independent check and verification, no facts have come
to
the attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto, at the time the Registration Statement
or
amendment became effective, contained an untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading or the Prospectus or any amendment
or
supplement thereto, at the time they were filed pursuant to Rule 424(b) or
at
the date of such counsel’s opinion, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express
no
opinion with respect to the financial information and statistical data and
information included in the Registration Statement, the Sale Preliminary
Prospectus or the Prospectus).
APPENDIX
C
1. No
Chinese law, rule, statute, government order or mandate or regulation required
to be described in the Prospectus is not described as required and insofar
as
the disclosures in the Registration Statement and Prospectus purport to
summarize matters of Chinese law, rules, statutes and regulations, such
disclosures constitute accurate summaries thereof in all material
respects.
The
opinion of counsel shall further include a statement to the effect that such
counsel has participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants for the
Company and representatives of the Underwriters at which the contents of the
Registration Statement, the Prospectus and related matters were discussed and
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus, no facts have come to the attention
of
such counsel which should lead them to believe that either the Registration
Statement or the Prospectus or any amendment or supplement thereto, as of the
date of such opinion, solely with respect to matters of Chinese law, rules,
statutes and regulations contained any untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circum-stances under which they
were made, not misleading.
EXHIBIT
A
FORM
OF TARGET BUSINESS LETTER
Gentlemen:
Reference
is made to the Final Prospectus of Infinity I-China Acquisition Corporation
(the
“Company”), dated
,
2008 (the “Prospectus”). Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in Prospectus.
We
have
read the Prospectus and understand that the Company has established the Trust
Account, initially in an amount of at least
$
for the benefit of the Public Shareholders and the Underwriters of the Company’s
initial public offering (the “Underwriters”) and that, except for a portion of
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 redemption of their shares or the dissolution and liquidation
of the Company or (ii) to the Company and the Underwriters after it consummates
a Business Combination.
For
and
in consideration of the Company agreeing to evaluate the undersigned for
purposes of consummating a Business Combination with it, the undersigned hereby
agrees that it does not have any right, title, interest or claim of any kind
in
or to any monies in the Trust Account (each, a “Claim”) and hereby waives any
Claim it may have in the future as a result of, or arising out of, any
negotiations, contracts or agreements with the Company and will not seek
recourse against the Trust Account for any reason whatsoever.
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Name of Target Business
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Authorized
Signature of Target Business
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EXHIBIT
B
FORM
OF VENDOR LETTER
Gentlemen:
Reference
is made to the Final Prospectus of Infinity I-China Acquisition Corporation
(the
“Company”), dated , 2008 (the
“Prospectus”). Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in Prospectus.
We
have
read the Prospectus and understand that the Company has established the Trust
Account, initially in an amount of at least
$
for the benefit of the Public Shareholders and the Underwriters of the
Company’s initial public offering (the “Underwriters”) and that, except for a
portion of 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 redemption of their shares or the dissolution
and liquidation of the Company or (ii) to the Company and the Underwriters
after
it consummates a Business Combination.
For
and
in consideration of the Company agreeing to use the services of the undersigned,
the undersigned hereby agrees that it does not have any right, title, interest
or claim of any kind in or to any monies in the Trust Account (each, a “Claim”)
and hereby waives any Claim it may have in the future as a result of, or arising
out of, any services provided to the Company and will not seek recourse against
the Trust Account for any reason whatsoever.
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Name of Vendor
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Authorized
Signature of Vendor
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