18,000,000 Units Polaris Acquisition Corp. UNDERWRITING AGREEMENT
18,000,000
Units
●,
2008
Lazard
Capital Markets LLC
As
Representative of the
Several
Underwriters
c/o
Lazard Capital Markets LLC
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Polaris
Acquisition Corp., a Delaware corporation (the “Company”),
proposes to sell to the several underwriters (the “Underwriters”)
named
in Schedule I hereto for whom you are acting as representative (the
“Representative”)
an
aggregate of 18,000,000 units (the “Firm
Units”),
with
each unit consisting of one share of the Company’s common stock, $0.0001 par
value (the “Common
Stock”)
and
one warrant (“Warrant”)
to
purchase one share of Common Stock. The respective amounts of Firm Units to
be
so purchased by each of the several Underwriters are set forth opposite their
respective names in Schedule I hereto. The Company also proposes to sell, at
the
Underwriters’ option (“Over-allotment
Option”),
an
aggregate of up to 2,700,000 additional units of the Company (the “Option
Units”)
as set
forth below. The terms of the Warrants are provided for in the form of a Warrant
Agreement (as defined herein).
As
the
Representative, you have advised the Company (a) that you are authorized to
enter into this Agreement on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Units set forth opposite their respective names
in
Schedule I, plus their pro rata portion of the Option Units if you elect to
exercise the Over-allotment Option in whole or in part for the accounts of
the
several Underwriters. The Firm Units and the Option Units (to the extent the
aforementioned option is exercised) are hereinafter collectively referred to
as
the “Units”,
and
the Units, the shares of Common Stock and the Warrants included in the Units
and
the shares of Common Stock issuable upon exercise of the Warrants included
in
the Units are hereinafter referred to as the “Securities.”
In
consideration of the mutual agreements contained herein and of the interests
of
the parties in the transactions contemplated hereby, the parties hereto agree
as
follows:
| 1. |
Representations
and Warranties of the Company.
|
The
Company represents and warrants to each of the Underwriters as
follows:
(a) A
registration statement on Form S-1 (File No. 333-145759) with respect to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the “Act”),
and
the rules and regulations (the “Rules
and Regulations”)
of the
Securities and Exchange Commission (the “Commission”)
thereunder and has been filed with the Commission. Copies of such registration
statement, including any amendments thereto, the preliminary prospectuses
(meeting the requirements of the Rules and Regulations) contained therein and
the exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the Company
pursuant to Rule 462(b) under the Act, is herein referred to as the
“Registration
Statement,”
which
shall be deemed to include all information omitted therefrom in reliance upon
Rules 430A or 430C under the Act and contained in the Prospectus referred to
below, has become effective under the Act and no post-effective amendment to
the
Registration Statement has been filed as of the date of this Agreement (the
“Effective
Date”).
“Prospectus”
means
the form of prospectus filed with the Commission pursuant to and within the
time
limits described in Rule 424(b) under the Act. The preliminary prospectus
included in the Registration Statement as of the Applicable Time (as defined
below) is herein referred to as the “Preliminary
Prospectus.”
Any
reference herein to the Prospectus shall be deemed to include any supplements
or
amendments thereto filed with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Act, and prior to the termination of
the
offering of the Units by the Underwriters. The Company has filed with the
Commission a Form 8-A (File Number 001-33860) providing for the registration
under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
of
the Securities.
(b) As
of the
Applicable Time and as of the Closing Date or the Option Closing Date, as the
case may be, the Statutory Prospectus (as defined below) and the information
included on Schedule II hereto, all considered together (collectively, the
“General Disclosure
Package”)
did
not and will not include any untrue statement of a material fact and did not
and
will not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the General Disclosure
Package in reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such
information is that described in Section 11 herein. The Company has not prepared
or used and will not prepare or use a “free writing prospectus” as defined in
Rule 405 under the Act, in connection with the offering of Securities. As used
in this subsection and elsewhere in this Agreement:
“Applicable
Time”
means
[5:00 p.m.] (New York time) on the date of this Agreement or such other time
as
agreed to by the Company and the Representative.
2
“Statutory
Prospectus”
as
of
any time means the Preliminary Prospectus relating to the Securities that is
included in the Registration Statement immediately prior to that
time.
(c) The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Delaware, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement, the General Disclosure Package and the
Prospectus. The Company has no subsidiaries, direct or indirect. The Company
is
duly qualified to transact business and in good standing in all jurisdictions
in
which the conduct of its business requires such qualification except for any
jurisdiction where the failure to be so qualified would not be reasonably
expected to have a Material Adverse Effect (as defined below).
(d) The
outstanding shares of Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable. The shares of Common Stock included
in
the Units have been duly authorized and, when issued and paid for as
contemplated herein, will be validly issued, fully paid and non-assessable;
and
no preemptive rights of stockholders exist with respect to any of such shares
or
the issue and sale thereof. The shares of Common Stock issuable upon exercise
of
the Warrants have been duly authorized and, when issued and paid for as
contemplated in the Warrants and the Warrant Agreement, will be validly issued,
fully paid and non-assessable; and no preemptive rights of stockholders exist
with respect to any of such shares or the issue and sale thereof.
(e) The
Warrants included in the Units have been duly authorized and, when executed
by
the Company, countersigned in the manner provided for in the Warrant Agreement
and delivered and paid for as contemplated herein, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to equitable principles of general applicability (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(f) Neither
the filing of the Registration Statement nor the offering or sale of the Units
as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of
any
securities of the Company. Except as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus, and except for those rights
provided for in the Registration Rights Agreement, dated as of the date hereof,
by and among the Company and the Initial Stockholders (the “Registration
Rights Agreement”),
no
holders of any securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the right to
require the Company to register any such securities of the Company under the
Act
or to include any such securities in a registration statement to be filed by
the
Company.
(g) The
information set forth under the caption “Capitalization” in the Registration
Statement and the Prospectus (and any similar section or information contained
in the General Disclosure Package) is true and correct. All of the Securities
conform to the descriptions thereof contained in the Registration Statement,
the
General Disclosure Package and the Prospectus. The form of the certificates
for
the shares of Common Stock conforms to the General Corporation law of the State
of Delaware.
3
(h) Neither
the Commission nor any state regulatory authority has issued an order preventing
or suspending the use of the Preliminary Prospectus or the Prospectus relating
to the proposed offering of the Units, and no proceeding for that purpose or
pursuant to Section 8A of the Act has been instituted or, to the Company’s
knowledge, threatened by the Commission or any state regulatory authority.
Neither the Commission nor any state regulatory authority has issued any order
preventing or suspending the effectiveness of the Registration Statement and
no
proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or is pending or, to the Company’s knowledge, is contemplated or
threatened by the Commission. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will comply as to form
to,
the requirements of the Act and the Rules and Regulations. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to
state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not omit, to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus,
or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representative specifically for use therein, it being understood
and
agreed that the only such information is that described in Section 11
herein.
(i) The
Company has not, directly or indirectly, distributed and will not distribute
any
offering material in connection with the offering and sale of the Units other
than the Preliminary Prospectus, the Prospectus and other materials, if any,
permitted under the Act.
(j) The
financial statements of the Company, together with related notes and schedules
as set forth in the Registration Statement, the General Disclosure Package
and
the Prospectus, present fairly the financial position and the results of
operations and cash flows of the Company, at the indicated dates and for the
indicated periods. Such financial statements and related schedules comply with
the applicable accounting requirements of the Act and the Rules and Regulations
and have been prepared in accordance with generally accepted accounting
principles in the United States (“GAAP”),
consistently applied throughout the periods involved, except as disclosed
therein, and all adjustments necessary for a fair presentation of results for
such periods have been made. The summary and selected financial and statistical
data included in the Registration Statement, the General Disclosure Package
and
the Prospectus present fairly the information shown therein and such data has
been compiled on a basis consistent with the financial statements presented
therein and the books and records of the Company. The Company does not have
any
material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” within the
meaning of Financial Accounting Standards Board Interpretation No. 46), not
disclosed in the Registration Statement, the General Disclosure Package and
the
Prospectus. There are no financial statements (historical or pro forma) that
are
required to be included in the Registration Statement, the General Disclosure
Package or the Prospectus that are not included as required.
4
(k) ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who have certified certain financial statements that are
filed with the Commission as part of the Registration Statement, the General
Disclosure Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company within the meaning of the Act and
the applicable Rules and Regulations and the Public Company Accounting Oversight
Board (United States) (the “PCAOB”).
(l) Except
as
disclosed in the Registration Statement, the General Disclosure Package and
the
Prospectus, the Company is not aware of any (i) material weakness in its
internal control over financial reporting or (ii) change in internal control
over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial
reporting.
(m) Solely
to
the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules and
regulations promulgated by the Commission and the American Stock Exchange
thereunder (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”)
has
been applicable to the Company, there is and has been no failure on the part
of
the Company to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company
has taken all necessary actions to ensure that it is in compliance with all
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are in effect and with which the
Company is required to comply and is actively taking steps to ensure that it
will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which
have
been proposed which are not currently in effect or which will become applicable
to the Company.
(n) There
is
no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company or, to the knowledge of the Company,
pending or threatened against any of the Company’s stockholders immediately
prior to the offering of Units (the “Initial
Stockholders”),
before any court or administrative agency or otherwise which if determined
adversely to the Company would either (i) have, individually or in the
aggregate, a material adverse effect on the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
or
prospects of the Company or (ii) prevent the consummation of the transactions
contemplated hereby (the occurrence of any such effect or any such prevention
described in the foregoing clauses (i) and (ii) being referred to as a
“Material
Adverse Effect”),
except as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus.
(o)
All
leases of the Company described in the Registration Statement, the General
Disclosure Package and the Prospectus are valid and subsisting and in full
force
and effect.
(p) Since
the
respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, there has not been any event or development in respect of the
business or condition of the Company that, individually or in the aggregate,
would have a Material Adverse Effect, whether or not occurring in the ordinary
course of business, and there has not been any material transaction entered
into
or any material transaction that is probable of being entered into by the
Company, other than transactions in the ordinary course of business and changes
and transactions described in the Registration Statement, the General Disclosure
Package and the Prospectus, as each may be amended or supplemented, and no
member of the Company’s management or board of directors has resigned from any
position with the Company. The Company has no material contingent obligations
which are not disclosed in the Company's financial statements which are included
in the Registration Statement, the General Disclosure Package and the
Prospectus.
5
Subsequent
to the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise specifically stated therein or in this Agreement, the Company has
not:
(i) issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money; or (ii) declared or paid any dividend or made
any other distribution on or in respect of its capital stock.
(q) The
Company is not, nor with the giving of notice or lapse of time or both, will
be,
(i) in violation of its certificate of incorporation or by-laws, (ii) in
violation of or in default under any agreement, lease, contract, indenture
or
other instrument or obligation to which it is a party or by which it, or any
of
its properties, is bound or (iii) in violation of any law, order, rule or
regulation, judgment, order, writ or decree applicable to the Company of any
court or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, its properties or
assets. The execution, delivery and performance of this Agreement, the Warrant
Agreement, the Stock Escrow Agreement, the Warrant Escrow Agreement, the
Subscription Agreements, the Services Agreement, the Trust Agreement (each
as
defined below) and the Registration Rights Agreement, and the consummation
of
the transactions herein and therein contemplated and the fulfillment of the
terms hereof and thereof will not conflict with or result in a breach of any
of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company
is
a party or by which the Company or any of its properties is bound, or of the
certificate of incorporation or by-laws of the Company or any law, order, rule
or regulation judgment, order, writ or decree applicable to the Company of
any
court or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, its properties or
assets.
(r) The
execution and delivery of, and the performance by the Company of its obligations
under, this Agreement, the Warrant Agreement, the Stock Escrow Agreement, the
Warrant Escrow Agreement, the Registration Rights Agreement, the Subscription
Agreements, the Services Agreement and the Trust Agreement have been duly and
validly authorized by all necessary corporate action on the part of the Company,
and this Agreement has been duly executed and delivered by the Company. On
the
Closing Date, the Warrant Agreement, the Stock Escrow Agreement, the Warrant
Escrow Agreement, the Registration Rights Agreement, the Subscription
Agreements, the Services Agreement and the Trust Agreement will have been duly
executed and delivered and they will constitute the valid and binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally; (ii) as such enforceability is
subject to equitable principles of general applicability (regardless of whether
enforcement is considered in a proceeding in equity or at law); and (iii) as
enforceability of any indemnification and contribution provisions may be limited
under state or federal securities laws.
6
(s) Each
approval, consent, order, authorization, designation, declaration or filing
by
or with any regulatory, administrative or other governmental body necessary
in
connection with the execution and delivery by the Company of this Agreement,
the
Warrant Agreement, the Stock Escrow Agreement, the Warrant Escrow Agreement,
the
Registration Rights Agreement, the Subscription Agreements, the Services
Agreement and the Trust Agreement and the consummation of the transactions
herein and therein contemplated (except for such additional steps as may be
required by the Commission, the Financial Industry Regulatory Authority, Inc.
(“FINRA”)
or
such additional steps as may be necessary to qualify the Securities for public
offering by the Underwriters under state securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(t) The
Company holds all material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of its business.
(u) Neither
the Company, nor to the Company’s knowledge, any of its affiliates, has taken or
will take, directly or indirectly, any action designed to cause or result in,
or
which has constituted or which might reasonably be expected to constitute,
the
stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Securities.
(v) The
Company is not and, after giving effect to the offering and sale of the Units
contemplated hereunder and the application of the net proceeds from such sale
as
described in the Registration Statement, the General Disclosure Package and
the
Prospectus, will not be an “investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended (the “1940
Act”),
and
the rules and regulations of the Commission thereunder.
(w) The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The
statistical, industry-related and market-related data included in the
Registration Statement, the General Disclosure Package and the Prospectus are
based on or 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.
7
(y) The
operations of the Company are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money
Laundering Laws”),
and
no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(z) Neither
the Company nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company, is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”);
and
the Company will not directly or indirectly use the proceeds of the offering,
or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(aa) The
Company is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ERISA”);
no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the “Code”);
and
each “pension plan” for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in
all
material respects and nothing has occurred, whether by action or by failure
to
act, which would cause the loss of such qualification.
(bb) To
the
Company’s knowledge, there are no affiliations or associations between any
member of FINRA and any of the Company’s officers, directors or 5% or greater
securityholders (prior to the sale of securities contemplated by this
Agreement).
(cc) The
Units, the Warrants and the Common Stock have been approved for listing subject
to notice of issuance on the American Stock Exchange.
(dd) There
are
no relationships or related-party transactions involving the Company or any
other person required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus which have not been described as
required.
(ee) Neither
the Company nor any of the Initial Stockholders nor any other person in each
case acting on behalf of the Company (other than the Underwriters) has made
any
contribution or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law which violation is required
to
be disclosed in the Registration Statement, the General Disclosure Package
and
the Prospectus.
8
(ff) All
information contained in the director’s
and officer’s questionnaires
completed by each of the Company’s Initial Stockholders and provided to the
Representative is true and correct in all respects and the Company has not
become aware of any information which would cause the information disclosed
in
the questionnaires completed by each Initial Stockholder to become inaccurate
and incorrect in any respect.
(gg) There
are
no claims, payments, arrangements, agreements or understandings relating to
the
payment of a finder’s, consulting or origination fee by the Company or any
Initial Stockholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any Initial Stockholder, that may affect the Underwriters’
compensation, as determined by FINRA. The Company has not made any direct or
indirect payments (in cash, securities or otherwise) to: (i) any person, as
a
finder’s fee, consulting fee or otherwise, in consideration of such person
raising capital for the Company or introducing to the Company persons who raised
or provided capital to the Company; (ii) any FINRA member; or (iii) any person
or entity that has any direct or indirect affiliation or association with any
FINRA member, within the twelve months prior to the Effective Date. None of
the
net proceeds of the offering will be paid by the Company to any participating
FINRA member or its affiliates, except as specifically authorized herein and
except as may be paid in connection with an initial merger, capital stock
exchange, asset acquisition or other similar business combination with an
operating business (“Business
Combination”)
and/or
one or more other transactions after the initial Business Combination, including
without limitation in connection with the payment of investment banking fees,
fees in connection with fairness opinions and other similar fees or
expenses.
(hh) The
Company has entered into a warrant agreement with respect to the Warrants with
Continental Stock Transfer & Trust Company, which agreement is substantially
in the form of Exhibit 4.4 to the Registration Statement (the “Warrant
Agreement”).
The
Company has entered into an Investment Management Trust Agreement (the
“Trust
Agreement”)
with
respect to certain proceeds of the offering, which agreement is substantially
in
the form of Exhibit [10.10] to the Registration Statement. The Company has
entered into a stock escrow agreement with respect to the shares of Common
Stock
held by the Initial Stockholders with Continental Stock Transfer & Trust
Company and the Initial Stockholders, which agreement is substantially in the
form of Exhibit [10.11] to the Registration Statement (the “Stock
Escrow Agreement”).
The
Company has entered into a warrant escrow agreement with respect to the Warrants
purchased in the Private Placement (as defined below) by the Initial
Stockholders with Continental Stock Transfer & Trust Company and the Initial
Stockholders, which agreement is substantially in the form of Exhibit [10.12]
to
the Registration Statement (the “Warrant
Escrow Agreement”).
The
Company has entered into separate subscription agreements with respect to the
Warrants purchased in the Private Placement, which agreements are substantially
in the form of Exhibit [10.16] to the Registration Statement (the “Subscription
Agreements”).
The
Company has entered into the Registration Rights Agreement, which agreement
is
substantially in the form of Exhibit [10.15] to the Registration Statement.
The
Company has entered into the administrative services agreement ("Services
Agreement")
with
Trivergance, LLC, substantially in the form annexed as Exhibit [10.13] to the
Registration Statement, pursuant to which such entity will make available to
the
Company general and administrative services for the Company's use for up to
$7,500 per month.
9
(ii) The
Company has caused to be duly executed legally binding and enforceable
agreements (except (i) as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting enforcement
of
creditors’ rights generally; (ii) as enforcement thereof is subject to equitable
principles of general applicability (regardless of whether enforcement is
considered in a proceeding in equity or at law); and (iii) as enforceability
of
any indemnification and contribution provisions may be limited under state
or
federal securities laws) in the forms filed as Exhibits [10.1 - 10.9] to the
Registration Statement (the “Insider
Letters”),
pursuant to which each of the Initial Stockholders of the Company has agreed
to
certain matters including, but not limited to, certain matters described as
being agreed to by such Initial Stockholder under the “Proposed Business”
section of the Registration Statement, the General Disclosure Package and the
Prospectus.
(jj) Except
as
disclosed in the Registration Statement, the General Disclosure Package and
the
Prospectus, no Initial Stockholder, employee, officer or director of the Company
is subject to any non-competition or non-solicitation agreement with any
employer or prior employer which could materially affect his ability to be
an
Initial Stockholder, employee, officer and/or director of the Company.
(kk) Upon
delivery and payment for the Firm Units on the Closing Date, the Company will
not be subject to Rule 419 under the Act and none of the Company’s outstanding
securities will be deemed to be a “▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under
the Exchange Act.
(ll) The
Company does not have any specific Business Combination under consideration
or
contemplation and the Company has not, nor has anyone on its behalf, either
directly or indirectly, contacted any potential target business or their
representatives or had any discussions, formal or otherwise, with any of the
foregoing with respect to effecting a business combination with the Company.
The
Company has not engaged or retained any agent or other representative to
identify or locate any suitable target.
| 2. |
Purchase,
Sale and Delivery of the Firm Units.
|
(a) On
the
basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $9.75 per Unit (the “Initial
Purchase Price”)
(less
$0.45 per Unit purchased hereunder (the “Deferred
Discount”)
payable to the Underwriters upon consummation of a Business Combination, subject
to Section 4(gg) hereof), the number of Firm Units set forth opposite the name
of each Underwriter in Schedule I hereof, subject to any adjustments as may
be
made in accordance with Section 13 hereof.
10
(b) Payment
for the Firm Units to be sold hereunder is to be made in Federal (same day)
funds against delivery of certificates therefor to the Representative for the
several accounts of the Underwriters. Such payment and delivery are to be made
through the facilities of The Depository Trust Company (“DTC”),
New
York, New York at 10:00 a.m., New York time, on the third business day after
the
date of this Agreement (or the fourth business day following the date of this
Agreement, if the offering is priced after 4:30 p.m., New York time) or at
such
other time and date not later than five business days thereafter as you and
the
Company shall agree upon, such time and date being herein referred to as the
“Closing
Date.”
(As
used herein, “business day” means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business and are
not permitted by law or executive order to be closed.) Payment of $175,500,000,
representing the aggregate purchase price for the Firm Units based on the
Initial Purchase Price, shall be made on the Closing Date by wire transfer
in
Federal (same day) funds, as follows: $174,750,000 (including $8,100,000,
representing the aggregate Deferred Discount without giving effect to the
Over-allotment Option) shall be deposited by the Representative directly in
the
trust account established by the Company for the benefit of the public
securityholders as described in the Registration Statement (the “Trust
Account”)
pursuant to the terms of the Trust Agreement, and the remaining $750,000 of
the
proceeds (representing $100,000 of the proceeds not required to be held in
the
Trust Account and $650,000 of offering expenses), shall be paid to the Company,
upon delivery to you of certificates (in form and substance satisfactory to
the
Representative) representing the Firm Units (or through the facilities of DTC)
for the account of the Underwriters. The certificates for the Firm Units will
be
delivered in such denominations and in such registrations as the Representative
requests in writing not later than the second full business day prior to the
Closing Date, and will be made available for inspection by the Representative
at
least one business day prior to the Closing Date.
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants to the several Underwriters the Over-allotment Option to purchase the
Option Units at the same price per Unit as is set forth in the first paragraph
of this Section 2 with respect to the Firm Units. The Over-allotment Option
granted hereby may be exercised in whole or in part by giving written notice
at
any time within 45 days after the date of this Agreement, by you, as
Representative of the several Underwriters, to the Company which notice shall
set forth the number of Option Units as to which the several Underwriters are
exercising the option and the time and date at which such certificates are
to be
delivered. The time and date at which certificates for Option Units are to
be
delivered shall be determined by the Representative but shall not be earlier
than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the “Option
Closing Date”).
If
the date of exercise of the option is three or more days before the Closing
Date, the notice of exercise shall set the Closing Date as the Option Closing
Date. The number of Option Units to be purchased by each Underwriter shall
be in
the same proportion to the total number of Option Units being purchased as
the
number of Firm Units being purchased by such Underwriter bears to the total
number of Firm Units, adjusted by you in such manner as to avoid fractional
units. The Over-allotment Option granted hereunder may be exercised only to
cover over-allotments in the sale of the Firm Units by the Underwriters. You,
as
Representative of the several Underwriters, may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment for the
Option Units shall be made on the Option Closing Date in Federal (same day
funds) through the facilities of DTC in New York, New York drawn to the order
of
the Company. Payment for the Option Units shall be made on the Option Closing
Date by wire transfer in Federal (same day) funds, as follows: $9.75 per Option
Unit sold (including the Deferred Discount) shall be deposited in the Trust
Account pursuant to the Trust Agreement upon delivery to you of certificates
(in
form and substance satisfactory to the Representative) representing the Option
Units sold (or through the facilities of DTC) for the account of the
Underwriters.
11
| 3. |
Offering
by the Underwriters.
|
It
is
understood that the several Underwriters are to make a public offering of the
Firm Units as soon as the Representative deems it advisable to do so. The Firm
Units are to be initially offered to the public at the initial public offering
price set forth in the Prospectus. The Representative may from time to time
thereafter change the public offering price and other selling terms. It is
further understood that you will act as the Representative for the Underwriters
in the offering and sale of the Units in accordance with a Master Agreement
Among Underwriters entered into by you and the several other
Underwriters.
| 4. |
Covenants
of the Company.
|
The
Company covenants and agrees with the several Underwriters, and solely with
respect to Section 4(b), the Underwriters covenant and agree with the Company,
that:
(a) The
Company will (A) prepare and timely file with the Commission under Rule 424(b)
of the Rules and Regulations a Prospectus in a form approved by the
Representative containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A or 430C
of
the Rules and Regulations and (B) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus of which the Representative shall not previously
have
been advised and furnished with a copy or to which the Representative shall
have
reasonably objected in writing or which is not in compliance with the Rules
and
Regulations.
(b) The
Company and each of the Underwriters will not make any offer relating to the
Securities that would constitute a “free writing prospectus” (as defined in Rule
405 under the Act) required to be filed by the Company with the Commission
under
Rule 433 under the Act.
(c) The
Company will advise the Representative promptly (A) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(B) of receipt of any comments from the Commission, (C) of any request of the
Commission for amendment of the Registration Statement or for supplement to
the
General Disclosure Package or the Prospectus or for any additional information,
and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of the Preliminary Prospectus or the Prospectus, or of the
institution of any proceedings for that purpose or pursuant to Section 8A of
the
Act. The Company will use its reasonable best efforts to prevent the issuance
of
any such order and to obtain as soon as possible the lifting thereof, if
issued.
12
(d) The
Company will cooperate with the Representative in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions as the
Representative may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service
of
process in any jurisdiction where it is not now so qualified or required to
file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representative may
reasonably request for distribution of the Securities.
(e) The
Company will deliver to, or upon the order of, the Representative, from time
to
time, as many copies of the Preliminary Prospectus as the Representative may
reasonably request. The Company will deliver to, or upon the order of, the
Representative during the period when delivery of a Prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Act) is required
under the Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representative may reasonably request. The
Company will deliver to the Representative at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Representative such number
of copies of the Registration Statement (including such number of copies of
the
exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Representative may reasonably request.
(f) The
Company will comply with the Act and the Rules and Regulations, and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit
the completion of the distribution of the Units as contemplated in this
Agreement and the Prospectus. If during the period in which a prospectus (or,
in
lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required by law to be delivered by an Underwriter or dealer, any event shall
occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement
or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law.
(g) If
the
General Disclosure Package is being used to solicit offers to buy the Securities
at a time when the Prospectus is not yet available to prospective purchasers
and
any event shall occur as a result of which, in the judgment of the Company
or in
the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or to make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is necessary
at
any time to amend or supplement the General Disclosure Package to comply with
any applicable law, the Company promptly will prepare, file with the Commission
(if required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package.
13
(h) The
Company will make generally available to its security holders, as soon as it
is
practicable to do so, but in any event not later than 15 months after the
Effective Date, an earnings statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months beginning after
the
Effective Date, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 under the Act and will advise you in
writing when such statement has been so made available.
(i) Prior
to
the Closing Date, the Company will furnish to the Underwriters, as soon as
they
have been prepared by or are available to the Company, a copy of any unaudited
interim financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(j) Except
for securities issued in the Private Placement, the Company hereby agrees that
until the Company consummates a Business Combination, it shall not issue any
shares of Common Stock or any options or other securities convertible into
Common Stock, or any shares of preferred stock which participate in any manner
in the Trust Account or which vote as a class with the Common Stock on a
Business Combination.
(k) The
Company will use its best efforts to effect and maintain the listing of the
Securities on the American Stock Exchange (“AMEX”).
(l) The
Company shall apply the net proceeds of its sale of the Securities as set forth
in the Registration Statement, General Disclosure Package and the Prospectus
and
shall file such reports with the Commission with respect to the sale of the
Securities and the application of the proceeds therefrom as may be required
in
accordance with Rule 463 under the Act.
(m) The
Company will maintain a transfer agent, warrant agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the Units,
Common Stock and Warrants, as applicable.
(n) The
Company will not take, directly or indirectly, any action that constitutes
or
might reasonably be expected to constitute, the stabilization or manipulation
of
the price of any securities of the Company.
(o) For
a
period of four years from the Effective Date, or such earlier time upon which
the Company is required to be liquidated the Company will maintain the
registration of the Securities under the provisions of the Exchange Act.
14
(p) For
a
period of four years from the Effective Date, or until such earlier date upon
which the Company is required to be liquidated the Company, at its expense,
shall cause its regularly engaged independent registered public accounting
firm
to review (but not audit) the Company’s financial statements for each of the
first three fiscal quarters prior to the announcement of quarterly financial
information and the filing of the Company’s Form 10-Q quarterly
report.
(q) The
Company shall not consummate a Business Combination with any Initial
Stockholder, or officer or director of the Company, or any entity which is
affiliated with any Initial Stockholder or officer or director of the Company
without first obtaining an opinion from an independent investment banking firm
that such Business Combination is fair to the Company’s stockholders from a
financial point of view.
(r) Except
as
described in the Registration Statement, General Disclosure Package and the
Prospectus, the Company shall not pay any Initial Stockholder or any of their
affiliates or family members any fees or compensation from the Company, for
services rendered to the Company prior to, or in connection with, the
consummation of an initial Business Combination; provided that the Initial
Stockholders shall be entitled to reimbursement from the Company, subject to
approval by the Board of Directors of the Company, for their reasonable
out-of-pocket expenses incurred in connection with seeking and consummating
an
initial Business Combination.
(s) The
Company will take all necessary actions to ensure that, upon and at all times
after the effectiveness of the Registration Statement, it will be in compliance
with (i) all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are then in effect and
applicable to it and shall take such steps as are necessary to ensure that
it
will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which
have
been proposed but which are not currently in effect upon the effectiveness
of
such provisions to the extent they are applicable to the Company and (ii) the
requirements of the American Stock Exchange’s AMEX Company Guide.
(t) For
a
period of four years from the Effective Date or until such earlier time upon
which the Company is required to be liquidated, the Company, upon request from
the Representative, will furnish to the Representative (i) copies of such
financial statements and other periodic and special reports as the Company
from
time to time furnishes generally to holders of any class of securities, and
promptly furnish to the Representative a copy of such registration statements,
financial statements and periodic and special reports as the Company shall
be
required to file with the Commission and from time to time furnishes generally
to holders of any such class of its securities, and (ii) such additional
documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Representative may from time to time
reasonably request, in each such case subject to the execution of a
confidentiality agreement reasonably satisfactory to the Company.
(u) For
a
period equal to four years from the date hereof or until such earlier time
upon
which the Company is required to be liquidated the Company will not take any
action or actions which may prevent or disqualify the Company’s use of Form S-1
(or other appropriate form) for the registration of the Warrants and the Common
Stock issuable upon exercise of the Warrants, under the Act.
15
(v) In
the
event any person or entity (excluding attorneys, accountants and
similar service providers that are not affiliated or associated with FINRA
and
are not brokers or finders) is engaged, in writing, to assist the issuer in
finding or evaluating a merger candidate, the Company will provide the following
to the Representative prior to consummation of an initial Business Combination:
(i) copies of agreements governing said services (which details or agreements
may be appropriately redacted to account for privilege or confidentiality
concerns), and (ii) a justification as to why the person or entity providing
the
merger and acquisition services should not be considered an “underwriter or
related person” with respect to the Company’s initial public offering as such
term is defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also
agrees that proper disclosure of such arrangement or potential arrangement
will
be made in the proxy statement which the Company will file for purposes of
soliciting stockholder approval for the initial Business
Combination.
(w) 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.
(x) The
Company shall, on the date hereof, retain its independent public accountants
to
audit the financial statements of the Company as of the Closing Date (the
“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the initial public
offering. As soon as the Audited Financial Statements become available, the
Company shall promptly file a Current Report on Form 8-K with the Commission,
which Report shall contain the Company’s Audited Financial Statements. In
addition, upon receipt of the proceeds from the sale of any Option Units after
the Closing Date, the Company shall promptly file a second or amended Current
Report on Form 8-K with the Commission, which Report shall provide updated
financial information to reflect the receipt of such additional
proceeds.
Upon
the
earlier to occur of (i) the expiration or termination of the Over-allotment
Option and (ii) the exercise in full of the Over-allotment Option, the Company
shall, subject to having filed the Current Report(s) on Form 8-K pursuant to
the
previous paragraph, promptly issue a press release announcing that separate
trading of the Warrants and Common Stock will begin on the AMEX.
(y) The
Company shall advise FINRA if it is aware that any 5% or greater securityholder
of the Company becomes an affiliate or associated person of a FINRA member
participating in the distribution of the Securities.
16
(z) The
Company shall, as set forth in the Trust Agreement and disclosed in the
Prospectus, cause the proceeds of the offering to be held in the Trust Account
to be invested only in “government securities” within the meaning of Section
2(a)(16) of the 1940 Act with a maturity of 180 days or less, or in money market
funds meeting certain conditions under Rule 2a-7 promulgated under the 1940
Act
with specific maturity dates. The Company will otherwise use its best efforts
to
conduct its business (both prior to and after the consummation of an initial
Business Combination) in a manner so that it will not become subject to the
▇▇▇▇
▇▇▇.
(aa) The
Company hereby agrees that prior to commencing a diligence investigation of,
or
if earlier, entering into a confidentiality or other agreement with, a company
with which the Company may enter into a Business Combination (“Target
Business”)
or
obtaining the services of any vendor or service provider, it will use its best
efforts to cause the Target Business or the vendor or service provider to
execute a waiver letter in the form attached hereto as Exhibit A and B,
respectively. Furthermore, prior to the Closing Date, each officer and director
of the Company shall execute a waiver letter in the form attached hereto as
Exhibit C.
(bb) The
Company shall not take any action or omit to take any action that would cause
the Company to be in breach or violation of its certificate of incorporation
or
by-laws and, the Company shall not take any action to amend or modify, and
will
not support, directly or indirectly, or in any way endorse or recommend that
stockholders approve any amendment or modification to, the provisions of its
certificate of incorporation that apply to the Company during the period
commencing upon the filing of the certificate of incorporation with the Delaware
Secretary of State and terminating upon the consummation of a Business
Combination, which action would result in such amendment or modification
becoming effective prior to an initial Business Combination.
(cc) The
Company agrees: (i) that, prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s stockholders for their approval
(“Initial
Transaction Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
stockholder approval under applicable state law; and (ii) that, in the event
that the Company does not effect a Business Combination within 24 months from
the consummation of this offering, the Company will be liquidated as described
in the Prospectus. With respect to the Initial Transaction Vote, the Company
shall cause all of the Initial Stockholders to vote all shares of Common Stock
owned by them and acquired prior to this offering (the “Initial
Shares”),
in
accordance with the vote of the majority of the IPO Shares (as hereinafter
defined) voted (in person or by proxy), at a meeting of the Company’s
stockholders called for the Initial Transaction Vote. At the time the Company
seeks approval of any potential initial Business Combination, the Company will
offer each of the holders of the Company’s Common Stock issued in this offering
other than the Initial Stockholders (the “IPO
Shares”)
the
right to convert such holder’s IPO Shares to cash, if the stockholder votes
against the Business Combination and the Business Combination is approved and
completed, at a per share price (the “Conversion
Price”)
equal
to the amount in the Trust Account (inclusive of any interest income therein,
net of income taxes, and including the Deferred Discount), as of two business
days prior to the consummation of the Business Combination divided by the total
number of IPO Shares (including any shares held by the Initial Stockholders).
If
the Company elects to proceed with a Business Combination, it will promptly
after the consummation of such Business Combination convert shares, based upon
the Conversion Price, from those holders of IPO Shares who affirmatively
requested such conversion and who voted against the initial Business
Combination; provided that such holders continue to hold such IPO Shares through
consummation of the Business Combination. If a majority of the IPO Shares that
are voted are not voted in favor of any initial Business Combination or holders
of 30% or more of the IPO Shares vote against approval of any potential initial
Business Combination and exercise their conversion rights, the Company will
not
proceed with such initial Business Combination and will not convert such
shares.
17
(dd) 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.
(ee) The
Company agrees that the initial Target Business(es) that it acquires must
collectively have a fair market value equal to at least 80% of the Company’s net
assets (including the funds held in the Trust Account other than the portion
representing the Deferred Discount) at the time of such acquisition. The fair
market value of such business(es) shall be determined by the Board of Directors
of the Company based upon one or more standards generally accepted by the
financial community. If the Board of Directors of the Company is not able to
independently determine that the Target Business(es) have a sufficient fair
market value, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm with respect to the satisfaction of such
criteria. The Company will not be 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(es) have sufficient
fair market value. The Company will not acquire less than a controlling interest
in the Target Business(es) (which would be at least 50% of each Target
Business’s voting securities).
(ff) The
Company shall deposit into the Trust Account the $5,250,000 of proceeds from
the
private placement (“Private
Placement”)
of
5,250,000 Warrants to the Company’s executive officers, directors and Initial
Stockholders, to be completed prior to the Closing Date.
(gg) Upon
consummation of the initial Business Combination, the Company shall pay the
Deferred Discount to the Representative, on behalf of the Underwriters, as
the
deferred portion of the Underwriters’ compensation.
| 5. |
Costs
and Expenses.
|
The
Company will pay all costs, expenses and fees incident to the performance of
the
obligations of the Company under this Agreement, including, without limiting
the
generality of the foregoing, the following: accounting fees of the Company;
the
fees and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement and the
Listing Application; the filing fees of the Commission; the filing fees, costs
and expenses incident to securing any required review by FINRA of the terms
of
the sale of the Units; if necessary, the costs and expenses of qualifying the
Securities for sale under state or foreign securities or “blue sky” laws; and
the Listing Fee of the American Stock Exchange. The Company will also pay (or
reimburse the Representative upon demand for) the cost of investigative search
firms of the Representative’s choice to conduct an investigation of each
individual named in the Preliminary Prospectus or the Prospectus as a sponsor,
officer, director or special advisor to the Company and will reimburse the
Underwriters for expenses incurred by the Underwriters in connection with any
“road show” or other presentations to prospective purchasers of Units, up to a
maximum amount of $55,000. The Company shall not, however, be required to pay
for any of the Underwriters’ expenses except as otherwise specifically provided
herein and except that, if this Agreement shall not be consummated because
the
conditions in Section 6 hereof are not satisfied by reason of any failure or
refusal on the part of the Company to perform any undertaking or satisfy any
condition of this Agreement or to comply with any of the terms hereof on its
part to be performed, unless such failure or refusal is due primarily to the
default or omission of any Underwriter, the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Units or in contemplation of performing
their obligations hereunder.
18
| 6. |
Conditions
of Obligations of the Underwriters.
|
The
several obligations of the Underwriters to purchase the Firm Units on the
Closing Date and the Option Units, if any, on the Option Closing Date are
subject to the accuracy, as of the Applicable Time, the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional
conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and the Prospectus shall have been filed as required by Rule
424 under the Act, within the time period prescribed by, and in compliance
with,
the Rules and Regulations, and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise) shall
have been disclosed to the Representative and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose or pursuant to Section 8A under the Act shall
have
been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order
of
any nature by a Federal or state court of competent jurisdiction shall have
been
issued as of the Closing Date which would prevent the issuance of the
Units.
(b) The
Representative shall have received on the Closing Date or the Option Closing
Date, as the case may be, the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may
be,
addressed to the Underwriters (and stating that it may be relied upon by counsel
to the Underwriters) in substantially the form attached hereto as Exhibit
D.
19
In
rendering such opinion, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ may rely as to matters governed by
the
laws of states other than New York or Federal laws on local counsel in such
jurisdictions, provided that in each case ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall state that
they
believe that they and the Underwriters are justified in relying on such other
counsel.
(c) The
Representative shall have received on and as of the Closing Date or the Option
Closing Date, as the case may be, an opinion and statement of ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such
matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request
to
enable them to pass upon such matters.
(d) You
shall
have received, on each of the date hereof, the Closing Date and, if applicable,
the Option Closing Date, a letter dated the date hereof, the Closing Date or
the
Option Closing Date, as the case may be, in form and substance satisfactory
to
you, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP confirming that they are an independent
registered public accounting firm with respect to the Company within the meaning
of the Act and the applicable Rules and Regulations and the PCAOB and stating
that in their opinion the financial statements and schedules examined by them
and included in the Registration Statement, the General Disclosure Package
and
the Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related Rules and Regulations; and
containing such other statements and information as are ordinarily included
in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(e) The
Representative shall have received on the Closing Date and, if applicable,
the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case
may
be, each of them severally represents as follows:
(i)
The
Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement and no order
preventing or suspending the use of the Preliminary Prospectus or the Prospectus
has been issued, and no proceedings for such purpose or pursuant to Section
8A
of the Act have been taken or are, to his or her knowledge, contemplated or
threatened by the Commission;
(ii)
The
representations and warranties of the Company contained in Section 1 hereof
are
true and correct as of the Closing Date or the Option Closing Date, as the
case
may be (except for representations and warranties which refer to a particular
date, in which case such representations and warranties shall be true and
correct as of such date);
20
(iii)
All
filings required to have been made pursuant to Rules 424, 430A, 430B or 430C
under the Act have been made as and when required by such
rules;
(iv)
He
or she
has carefully examined the General Disclosure Package and, in his or her
opinion, as of the Applicable Time, the statements contained in the General
Disclosure Package did not contain any untrue statement of a material fact,
and
such General Disclosure Package did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading;
(v)
He
or she
has carefully examined the Registration Statement and, in his or her opinion,
as
of the effective date of the Registration Statement, the Registration Statement
and any amendments thereto did not contain any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein not misleading, and since
the
effective date of the Registration Statement, no event has occurred which should
have been set forth in a supplement to or an amendment of the Prospectus which
has not been so set forth in such supplement or amendment;
(vi)
He
or she
has carefully examined the Prospectus and, in his or her opinion, as of its
date
and the Closing Date or the Option Closing Date, as the case may be, the
Prospectus and any amendments and supplements thereto did not contain any untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; and
(vii)
Since
the
respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company, whether or not arising in the ordinary course of business.
(f) The
Company shall have furnished to the Representative such further certificates
and
documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Representative may
reasonably have requested.
(g) The
Firm
Units and Option Units, if any, shall have been duly listed, subject to notice
of issuance, on the American Stock Exchange.
21
(h) The
Company shall have delivered to the Representative executed copies of the Trust
Agreement, the Warrant Agreement, the Stock Escrow Agreement, the Warrant Escrow
Agreement, the Registration Rights Agreement, the Services Agreement, the
Subscription Agreements and each of the Insider Letters.
(i) FINRA
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
The
opinions and certificates mentioned in this Agreement shall be deemed to be
in
compliance with the provisions hereof only if they are in all material respects
reasonably satisfactory to the Representative and to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
&
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If
any of
the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing at or
prior to the Closing Date or the Option Closing Date, as the case may
be.
In
such
event, the Company and the Underwriters shall not be under any obligation to
each other (except to the extent provided in Sections 5 and 8
hereof).
| 7. |
Indemnification
and Contribution.
|
(a) The
Company shall indemnify and hold harmless
each
Underwriter, its affiliates and each of its and their respective directors,
officers, members, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Act of or Section 20 of the Exchange Act (collectively the “Underwriter
Indemnified Parties,”
and
each an “Underwriter
Indemnified Party”)
against any loss, claim, damage, expense or liability whatsoever (or any action,
investigation or proceeding in respect thereof), joint or several, to which
such
Underwriter Indemnified Party may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (A) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
any
Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, or in any other materials
or information provided to investors by, or with the approval of, the Company
in
connection with the offering, including, without limitation, in any “roadshow”
(as defined in Rule 433 under the Securities Act) for the offering
(“Marketing
Materials”)
or (B)
the omission or alleged omission to state in any Preliminary Prospectus, any
Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, or in any Marketing
Materials, a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (C) any breach of the
representations and warranties of the Company contained herein or failure of
the
Company to perform its obligations hereunder or pursuant to any law, any act
or
failure to act, or any alleged act or failure to act, by any Underwriter in
connection with, or relating in any manner to, the Securities or the offering
of
the Securities contemplated herein, and which is included as part of or referred
to in any loss, claim, damage, expense, liability, action, investigation or
proceeding arising out of or based upon matters covered by subclause (A), (B)
or
(C) above of this Section 7(a)
(provided
that the
Company shall not be liable in the case of any matter covered by this subclause
(C) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, expense or liability
resulted directly from any such act or failure to act undertaken or omitted
to
be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse the Underwriter Indemnified Party promptly
upon
demand for any legal fees or other expenses reasonably incurred by that
Underwriter Indemnified Party in connection with investigating, or preparing
to
defend, or defending against, or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any such loss, claim, damage,
expense, liability, action, investigation or proceeding, as such fees and
expenses are incurred; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, expense or liability arises out of or is based upon an
untrue statement or alleged untrue statement in, or omission or alleged omission
from any Preliminary Prospectus, any Registration Statement or the Prospectus,
or any such amendment or supplement thereto, made in reliance upon and in
conformity with written information furnished to the Company by the
Representative by or on behalf of any Underwriter specifically for use
therein,
which
information the parties hereto agree is limited to the Underwriters’ Information
(as defined in Section 11). This indemnity agreement is not exclusive and will
be in addition to any liability which the Company might otherwise have and
shall
not limit any rights or remedies which may otherwise be available at law or
in
equity to each Underwriter Indemnified Party.
22
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company and its directors, its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (collectively
the “Company
Indemnified Parties”
and
each a “Company
Indemnified Party”)
against any loss, claim, damage, expense or liability whatsoever (or any action,
investigation or proceeding in respect thereof), joint or several, to which
such
Company Indemnified Party may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
any
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, any Registration Statement or the Prospectus, or in any amendment
or
supplement thereto, a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Representative by or on behalf
of
any Underwriter specifically for use therein, which information the parties
hereto agree is limited to the Underwriters’ Information, and shall reimburse
the Company for any legal or other expenses reasonably incurred by such party
in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim,
damage, liability, action, investigation or proceeding, as such fees and
expenses are incurred.
Notwithstanding the provisions of this Section 7(b), in no event shall any
indemnity by a Underwriter under this Section 7(b) exceed the total
compensation received by such Underwriter in accordance with
Section 2.
23
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
such indemnifying party in writing of the commencement of that action;
provided,
however,
that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 7 except to the extent it has been
materially prejudiced by such failure; and, provided,
further,
that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section
7.
If
any
such action shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of such action
with
counsel reasonably satisfactory to the indemnified party (which counsel shall
not, except with the written consent of the indemnified party, be counsel to
the
indemnifying party). After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such action, except as provided
herein, the indemnifying party shall not be liable to the indemnified party
under Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense of such action other than
reasonable costs of investigation; provided,
however,
that any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense of such action but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall
be
at the expense of such indemnified party unless (i) the employment thereof
has
been specifically authorized in writing by the Company in the case of a claim
for indemnification under Section 7(a)
or the
Underwriters in the case of a claim for indemnification under Section
7(b),
(ii)
such indemnified party shall have been advised by its counsel that there may
be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable
period of time after notice of the commencement of the action or the
indemnifying party does not diligently defend the action after assumption of
the
defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of
the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of (or, in the case of a failure to diligently defend the action
after assumption of the defense, to continue to defend) such action on behalf
of
such indemnified party and the indemnifying party shall be responsible for
legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense of such action; provided,
however,
that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys at
any
time for all such indemnified parties (in addition to any local counsel), which
firm shall be designated in writing by the Representative if the indemnified
parties under this Section 7 consist of any Underwriter Indemnified Party or
by
the Company if the indemnified parties under this Section 7 consist of any
Company Indemnified Parties.
Subject
to this Section 7(c),
the
amount payable by an indemnifying party under Section 7 shall include, but
not
be limited to, (x) reasonable legal fees and expenses of counsel to the
indemnified party and any other expenses in investigating, or preparing to
defend or defending against, or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any action, investigation,
proceeding or claim, and (y) all amounts paid in settlement of any of the
foregoing. No indemnifying party shall, without the prior written consent of
the
indemnified parties, settle or compromise or consent to the entry of judgment
with respect to any pending or threatened action or any claim whatsoever, in
respect of which indemnification or contribution could be sought under this
Section 7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes
an
unconditional release of each indemnified party in form and substance reasonably
satisfactory to such indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission
of
fault, culpability or a failure to act by or on behalf of any indemnified party.
Subject to the provisions of the following sentence, no indemnifying party
shall
be liable for settlement of any pending or threatened action or any claim
whatsoever that is effected without its written consent (which consent shall
not
be unreasonably withheld or delayed), but if settled with its written consent,
if its consent has been unreasonably withheld or delayed or if there be a
judgment for the plaintiff in any such matter, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment. In addition, if at any
time
an indemnified party shall have requested that an indemnifying party reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
herein effected without its written consent if (i) such settlement is entered
into more than forty-five (45) days after receipt by such indemnifying party
of
the request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior
to
the date of such settlement.
24
(d) If
the
indemnification provided for in this Section 7 is unavailable or insufficient
to
hold harmless an indemnified party under Section 7(a)
or
Section 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid, payable or otherwise incurred
by such indemnified party as a result of such loss, claim, damage, expense
or
liability (or any action, investigation or proceeding in respect thereof),
as
incurred, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities, or (ii) if the allocation
provided by clause (i) of this Section 7(d) is not permitted by applicable
law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) of this Section 7(d) but also the relative fault
of
the Company on the one hand and the Underwriters on the other with respect
to
the statements, omissions, acts or failures to act which resulted in such loss,
claim, damage, expense or liability (or any action, investigation or proceeding
in respect thereof) as well as any other relevant equitable considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Underwriters
in connection with the Offering, in each case as set forth in the table on
the
cover page of the Prospectus (but in the case of the Underwriters, including
the
Deferred Discount only to the extent actually received by the Underwriters).
The
relative fault of the Company on the one hand and the Underwriters on the other
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 on
the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement, omission, act or failure to act; provided
that
the
parties hereto agree that the written information furnished to the Company
by
the Underwriters for use in the Preliminary Prospectus, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, consists
solely of the Underwriters’ Information. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7(d) were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, expense, liability, action, investigation
or
proceeding referred to above in this Section 7(d) shall be deemed to include,
for purposes of this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating, preparing
to defend or defending against or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any such loss, claim, damage,
expense, liability, action, investigation or proceeding. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the total compensation received by such Underwriter
in
accordance with Section 2 less the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement, omission or alleged omission, act or alleged act or failure
to
act or alleged failure to act. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The
Underwriters’ obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective obligations and not joint.
25
| 8. |
Notices.
|
All
communications hereunder shall be in writing and, except as otherwise provided
herein, will be mailed, delivered, telecopied or telegraphed and confirmed
as
follows: if to the Underwriters, to Lazard Capital Markets LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel; if to
the
Company to Polaris Acquisition Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and Chief Executive
Officer.
| 9. |
Termination.
|
This
Agreement may be terminated by you by notice to the Company (a)
at
any time prior to the Closing Date or any Option Closing Date (if different
from
the Closing Date and then only as to Option Units) if any of the following
has
occurred: (i) since the respective dates as of which information is given in
the
Registration Statement, the General Disclosure Package and the Prospectus,
a
Material Adverse Effect shall have occurred, (ii) trading in securities
generally on the New York Stock Exchange, Nasdaq Global Market or the American
Stock Exchange or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall have
been suspended or materially limited, or minimum or maximum prices or maximum
range for prices shall have been established on any such exchange or such market
by the Commission, by such exchange or market or by any other regulatory body
or
governmental authority having jurisdiction, (iii) a banking moratorium shall
have been declared by Federal or state authorities or a material disruption
has
occurred in commercial banking or securities settlement or clearance services
in
the United States, (iv) the United States shall have become engaged in
hostilities, or the subject of an act of terrorism, or there shall have been
an
outbreak of or escalation in hostilities involving the United States, or there
shall have been a declaration of a national emergency or war by the United
States or (v) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall
be
such) as to make it, in the judgment of the Representative, impracticable or
inadvisable to proceed with the sale or delivery of the Units on the terms
and
in the manner contemplated in the Preliminary Prospectus and the Prospectus;
or
26
| (b) |
as
provided in Sections 6 and 12 of this
Agreement.
|
| 10. |
Successors.
|
This
Agreement has been and is made solely for the benefit of the Underwriters and
the Company and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Units from any Underwriter shall be deemed a successor
or assign merely because of such purchase.
| 11. |
Information
Provided by Underwriters.
|
The
Company and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company for inclusion
in
the Registration Statement, the Preliminary Prospectus or the Prospectus
consists of the information set forth in the first, third and eleventh
paragraphs under the caption “Underwriting” in the Prospectus and each
Underwriter’s name as contained on the cover page of the Prospectus (the
“Underwriters’
Information”).
| 12. |
Default
by Underwriters.
|
If
on the
Closing Date or the Option Closing Date, as the case may be, any Underwriter
shall fail to purchase and pay for the portion of the Units which such
Underwriter has agreed to purchase and pay for on such date (otherwise than
by
reason of any default on the part of the Company), you, as Representative of
the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set
forth
herein, the Units which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representative, shall not have
procured such other Underwriters, or any others, to purchase the Units agreed
to
be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Units with respect to which such default shall occur does
not exceed 10% of the Units to be purchased on the Closing Date or the Option
Closing Date, as the case may be, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Units which they are
obligated to purchase hereunder, to purchase the Units which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Units with respect to which such default shall occur exceeds 10% of the
Units
to be purchased on the Closing Date or the Option Closing Date, as the case
may
be, the Company or you as the Representative of the Underwriters will have
the
right, by written notice given within the next 36-hour period to the parties
to
this Agreement, to terminate this Agreement without liability on the part of
the
non-defaulting Underwriters or of the Company except to the extent provided
in
Sections 5 and 7 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 12, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representative, may determine in order that
the
required changes in the Registration Statement, the General Disclosure Package
or in the Prospectus or in any other documents or arrangements may be effected.
The term “Underwriter” includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 12 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
27
| 13. |
Absence
of Fiduciary Duty.
|
The
Company acknowledges and agrees that:
(a)
the
Underwriters’ responsibility to the Company is solely contractual in nature, the
Underwriters have been retained solely to act as underwriters in connection
with
the offering of the Securities contemplated herein and no fiduciary, advisory
or
agency relationship between the Company and the Underwriters has been created
in
respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Underwriters, the Representative or Lazard Frères & Co. LLC
have advised or are advising the Company on other matters;
(b)
the
price of the Securities set forth in this Agreement was established following
arms-length negotiations and the Company is capable of evaluating and
understanding, and understands and accepts, the terms, risks and conditions
of
the transactions contemplated by this Agreement;
(c)
it
has been advised that the Underwriters, the Representative, Lazard Frères &
Co. LLC and their respective affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company
and that the Underwriters
have no
obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship; and
(d)
it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty and agrees that
the
Underwriters shall have no liability (whether direct or indirect) to the Company
in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
28
| 14. |
Miscellaneous.
|
The
reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants contained in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any
Underwriter or controlling person thereof, or by or on behalf of the Company
or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
This
Agreement shall be governed by, and construed in accordance with, the law of
the
State of New York, including, without limitation, Section 5-1401 of the New
York
General Obligations Law. In any proceeding relating to the Registration
Statement, the Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party hereby (i) irrevocably submits to the jurisdiction
of the United States District Court sitting in the Southern District of New
York
and the courts of the State of New York located in New York county for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby and (ii) hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that
it
is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue
of
the suit, action or proceeding is improper. Each party hereto consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained in this section shall
affect or limit any right to serve process in any other manner permitted by
law.
29
If
the
foregoing letter is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in
accordance with its terms.
| Very truly yours, | ||
| POLARIS ACQUISITION CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| The foregoing Underwriting Agreementis hereby confirmed and accepted asof the date first above written. | ||||
| LAZARD CAPITAL MARKETS LLC | ||||
| By | ||||
|
Authorized Officer |
||||
|
As
Representative of the several
Underwriters
listed on Schedule I
|
||||
30
SCHEDULE
I
Schedule
of Underwriters
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
|
Lazard
Capital Markets, LLC
|
||
|
Ladenburg
▇▇▇▇▇▇▇▇ & Co. Inc.
|
||
|
ThinkEquity
Partners LLC
|
||
|
|
||
|
Total
|
18,000,000
|
31
SCHEDULE
II
Trade
date:●,
2008
Settlement
date:●,
2008
Selling
concession:
$● per
Unit
32
EXHIBIT
A
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and Chief Executive Officer
Gentlemen:
Reference
is made to the Final Prospectus of Polaris Acquisition Corp. (the “Company”),
dated _________, 2008 (the “Prospectus”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We
have
read the Prospectus and understand that the Company has established the Trust
Account, initially in an amount of $180,000,000, for the benefit of the Public
Stockholders and that the Company may disburse monies from the Trust Account
only (i) to the Public Stockholders in the event of the redemption of their
shares or the liquidation of the Company, (ii) to the Company, interest earned
on funds in the Trust Account in an aggregate amount of up to (a) $1,800,000
to
fund expenses related to investigating and selecting a target business and
the
Company’s other working capital requirements and (b) any amounts needed by the
Company to pay its income or other tax obligations or (iii) to the Company
and
the underwriters after the Company consummates an initial Business Combination.
For
and
in consideration of the Company agreeing to evaluate the undersigned for
purposes of consummating an initial Business Combination with it, the
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Account (the “Claim”) and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the Company and will not
seek
recourse against the Trust Account for any reason whatsoever.
|
Print Name of Target Business |
||
|
Authorized Signature of Target Business |
||
A-1
EXHIBIT
B
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and Chief Executive Officer
Gentlemen:
Reference
is made to the Final Prospectus of Polaris Acquisition Corp. (the “Company”),
dated _________, 2008 (the “Prospectus”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We
have
read the Prospectus and understand that the Company has established the Trust
Account, initially in an amount of $180,000,000, for the benefit of the Public
Stockholders and that the Company may disburse monies from the Trust Account
only (i) to the Public Stockholders in the event of the redemption of their
shares or the liquidation of the Company, (ii) to the Company, interest earned
on funds in the Trust Account in an aggregate amount of up to (a) $1,800,000
to
fund expenses related to investigating and selecting a target business and
the
Company’s other working capital requirements and (b) any amounts needed by the
Company to pay its income or other tax obligations or (iii) to the Company
and
the underwriters after the Company consummates an initial Business Combination.
For
and
in consideration of the Company engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Account (the “Claim”) and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the Company and will not
seek
recourse against the Trust Account for any reason whatsoever.
|
Print Name of Vendor |
||
|
Authorized Signature of Vendor |
||
B-1
EXHIBIT
C
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and Chief Executive Officer
Gentlemen:
Reference
is made to the Final Prospectus of Polaris Acquisition Corp. (the “Company),
dated ___________, 2008 (the “Prospectus”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
The
undersigned officer or director of the Company hereby acknowledges that the
Company has established the Trust Account, initially in an amount of
$180,000,000, for the benefit of the Public Stockholders.
The
undersigned hereby waives any claim the undersigned may have in the future
as a
result of, or arising out of, any contracts or agreements with the Company,
to
or against the Trust Account and will not seek recourse against the Trust
Account for any reason whatsoever.
|
Print Name of Officer/Director |
||
|
Authorized Signature of Officer/Director |
||
C-1