22,500,000 Units ENERGY INFRASTRUCTURE ACQUISITION CORP. UNDERWRITING AGREEMENT
22,500,000
Units
__________________,
2006
Maxim
Group LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
As
Representative of the Underwriters
named
on Schedule
A
hereto
Ladies
and Gentlemen:
The
undersigned, Energy Infrastructure Acquisition Corp., a Delaware corporation
(“Company”),
hereby confirms its agreement with Maxim Group LLC (“Maxim”
or
the
“Representative”)
and
with the other underwriters named on Schedule A
hereto
for which Maxim is acting as representative (the Representative and the other
Underwriters being collectively referred to herein as the “Underwriters”
or,
individually, an “Underwriter”)
as
follows:
1. Purchase
and Sale of Securities.
1.1. Firm
Securities.
1.1.1. Purchase
of Firm Units.
On the basis of the representations and warranties herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell, severally and not jointly, to the several Underwriters, an aggregate
of
22,500,000 units (the “Firm
Units”)
of the
Company’s securities at a purchase price (net of discounts and commissions) of
$9.40 per Firm Unit ($.10 of which shall be deposited into the Trust Fund (as
elsewhere defined) pursuant to Section 1.5). The Underwriters, severally
and not jointly, agree to purchase from the Company the number of Firm Units
set
forth opposite their respective names on Schedule A
attached
hereto and made a part hereof at a purchase price (net of discounts and
commissions) of $9.40 per Firm Unit ($.10 of which shall be deposited into
the
Trust Fund pursuant to Section 1.5). The Firm Units are to be offered
initially to the public (the “Offering”)
at the
offering price of $10.00 per Firm Unit. Each Firm Unit consists of one
share of the Company’s common stock, par value $.0001 per share (the
“Common
Stock”),
and
one warrant to purchase one share of Common Stock (the “Warrant(s)”).
The shares of Common Stock and the Warrants included in the Firm Units will
not
be separately transferable until 90 days after the effective date (the
“Effective
Date”)
of the
Registration Statement (as defined in Section 2.1.1 hereof) unless Maxim
informs the Company in writing of its decision to allow earlier separate trading
based on its assessment of the relative strengths of the securities markets
and
small capitalization companies in general, and the trading pattern of, and
demand for, the Company’s securities in particular. Maxim may decide to allow
continued trading of the Units following such separation. In no event will
Maxim
allow separate trading until: (i) the preparation of an audited balance sheet
of
the Company reflecting receipt by the Company of the proceeds of the Offering
and the filing of such audited balance sheet with the Commission (as herein
defined) on a Form 8-K or similar form by the Company which includes such
balance sheet; (ii) the Company files a Form 8-K and issues a press release
announcing when such separate trading will begin; and (iii) the Business Day
(defined below) following the earliest to occur of the expiration of the
Over-allotment Option (defined below) or the exercise of the Over-allotment
Option in full. Each Warrant entitles its holder to purchase one share of
Common Stock for $8.00 per share during the period commencing on the later
of:
(a) the consummation by the Company of its “Business Combination” or (b) one
year from the Effective Date of the Registration Statement and terminating
on
the four-year anniversary of the Effective Date, and has a provision permitting
cashless exercise in certain instances. As used herein, the term
“Business
Combination”
shall
mean any acquisition of, through a merger, capital stock exchange, asset
acquisition or other similar business combination, one or more businesses that
supports the process of bringing energy, in the form of crude oil, natural
and
liquefied petroleum gas, and refined and specialized products (such as
petrochemicals), from production to final consumption throughout the world.
The
Company has the right to redeem the Warrants upon not less than thirty (30)
days
written notice at a price of $0.01 per Warrant at any time after the Warrants
become exercisable; so long as the last sales price of the Company’s Common
Stock has been at least $14.25 for any twenty (20) trading days within a thirty
(30) trading day period ending on the third business day prior to the day on
which notice is given.
Maxim
Group LLC
________________,
2006
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1.1.2. Payment
and Delivery.
Delivery and payment for the Firm Units shall be made at 10:00 A.M., New York
time, on the third Business Day (as elsewhere defined) following the Effective
Date of the Registration Statement (or the fourth Business Day following the
Effective Date, if the Registration Statement is declared effective after 4:30
p.m.) or at such earlier time as shall be agreed upon by the Representative
and
the Company at the offices of the Representative or at such other place as
shall
be agreed upon by the Representative and the Company. The closing of the
public offering contemplated by this Agreement is referred to herein as the
“Closing”
and
the
hour and date of delivery and payment for the Firm Units is referred to herein
as the “Closing
Date.”
Payment for the Firm Units shall be made on the Closing Date at the
Representative’s election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds. $[ ] ($[
] per unit; $[ ] if the Over-allotment Option (as defined in Section 1.2) is
exercised in full, which represents approximately $[ ] per unit) of the proceeds
received by the Company for the Firm Units and from the Private Placement (as
defined in Section 1.4) shall be deposited in the trust fund established by
the
Company for the benefit of the public stockholders as described in the
Registration Statement (the “Trust
Fund”)
pursuant to the terms of an Investment Management Trust Agreement (the
“Trust
Agreement”)
which
amount includes up to: (i) $2,250,000 ($0.10 per Firm Unit; $[ ] if the
Over-allotment Option is exercised in full, which represents $[ ] per Option
Unit) payable to the Underwriters as contingent compensation and (ii) $82,540
payable to the Representative as placement fees for the Private Placement,
each
upon consummation of a Business Combination. Any remaining proceeds (less
commissions, expense allowance and actual expense payments or other fees payable
pursuant to this Agreement) shall be paid to the order of the Company upon
delivery to the Representative of certificates (in form and substance
satisfactory to the Underwriters) representing the Firm Units (or through the
facilities of the Depository Trust Company (the “DTC”))
for
the account of the Underwriters. The Firm Units shall be registered in
such name or names and in such authorized denominations as the Representative
may request in writing at least two Business Days prior to the Closing
Date. The Company will permit the Representative to examine and package
the Firm Units for delivery, at least one full Business Day prior to the Closing
Date. The Company shall not be obligated to sell or deliver the Firm Units
except upon tender of payment by the Representative for all the Firm Units.
As
used
herein, the term “Business
Day”
shall
mean any day other than a Saturday, Sunday or any day on which national banks
in
New York, New York are not open for business.
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Group LLC
________________,
2006
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1.2. Over-Allotment
Option.
1.2.1. Option
Units.
For the purposes of covering any over-allotments in connection with the
distribution and sale of the Firm Units, the Underwriters are hereby granted,
severally and not jointly, an option to purchase up to an additional
3,375,000 units
from the Company (the “Over-allotment
Option”).
Such additional 3,375,000 units shall be identical in all respects to the Firm
Units and are hereinafter referred to as “Option
Units.”
The Firm Units and the Option Units are hereinafter collectively referred to
as
the “Units,”
and
the Units, the shares of Common Stock and the Warrants included in the Units
and
the shares of Common Stock issuable upon exercise of the Warrants are
hereinafter referred to collectively as the “Public
Securities.”
The purchase price to be paid for each Option Unit (net of discounts and
commissions) will be $9.50 per Option Unit ($.30 of which shall be deposited
in
the Trust Fund pursuant to Section 1.5). The Option Units are to be offered
initially to the public at the offering price of $10.00 per Option
Unit.
1.2.2. Exercise
of Option.
The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be
exercised by the Representative as to all (at any time) or any part (from time
to time) of the Option Units within 45 days after the Effective Date. The
Underwriters will not be under any obligation to purchase any Option Units
prior
to the exercise of the Over-allotment Option. The Over-allotment Option
granted hereby may be exercised by the giving of oral notice to the Company
from
the Representative, which must be confirmed in writing by overnight mail or
facsimile transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of, and payment for, the Option Units, which
will not be later than five Business
Days after the date of the notice or such other time as shall be agreed upon
by
the Company and the Representative, at the offices of the Representative or
at
such other place and in such other manner as shall be agreed upon by the Company
and the Representative. If such delivery and payment for the Option Units
does not occur on the Closing Date, the date and time of the closing for such
Option Units will be as set forth in the notice (hereinafter the “Option
Closing Date”).
Upon exercise of the Over-allotment Option, the Company will become obligated
to
convey to the Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the number of Option
Units specified in such notice.
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Group LLC
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2006
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1.2.3. Payment
and Delivery.
Payment for the Option Units shall be made on the Option Closing Date at the
Representative’s election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds, by
deposit of the sum of $9.80 per Option Unit ($.30 of which shall be deposited
into the Trust Fund as set forth in Section 1.5) in the Trust Fund pursuant
to
the Trust Agreement upon delivery to the Representative of certificates (in
form
and substance satisfactory to the Underwriters) representing the Option Units
(or through the facilities of DTC) for the account of the Underwriters. The
certificates representing the Option Units to be delivered will be in such
denominations and registered in such
names as the Representative requests not less than two Business Days prior
to
the Closing Date or the Option Closing Date, as the case may be, and will be
made available to the Representative for inspection, checking and packaging
at
the aforesaid office of the Company’s transfer agent or correspondent not less
than one full Business Day prior to such Closing Date or Option Closing
Date.
1.3. Representative’s
Shares.
1.3.1. As
additional consideration, the Company hereby agrees to issue to the
Representative (and/or their designees) on the Effective Date 225,000 shares
of
Common Stock (“Representative’s
Shares”,
and
collectively with the Public Securities, the “Securities”)
to be
delivered at the Closing. The Representative’s Shares shall be placed in escrow
with the Transfer Agent (as defined below) and will only be released to the
Representative upon the consummation of the Business Combination.
1.3.2. The
Representative’s Shares shall be entitled to registration rights identical to
those of the Placement Securities (as defined below).
1.4. Private
Placement.
Immediately prior to the Closing, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief
Operating Officer and President, and his designees (each of such parties a
“Non-US
Person”
as
such
term is defined under Regulation S of the Securities Act of 1933, as amended
(the “Act”))
will
purchase from the Company pursuant to the Subscription Agreement (as defined
in
Section 2.23.2 hereof) an aggregate of 825,398 units identical to the Units
(the
“Placement
Units”)
at a
purchase price of $10.00 per Placement Unit in a private placement (the
“Private
Placement”)
effected pursuant to Regulation S under the Act. The Placement Units, the shares
of Common Stock and the Warrants included in the Placement Units (the
“Placement
Warrants”)
and
the shares of Common Stock issuable upon exercise of the Placement Warrants
are
hereinafter referred to collectively as the “Placement
Securities.”
Maxim
will act as placement agent in the Private Placement and shall be entitled
to a
placement fee equal to four percent (4%) and a non-accountable expense allowance
equal to one percent (1%) of the gross proceeds received by the Company from
the
sale of the Placement Securities. In addition, Maxim shall be entitled to
receive a contingent placement fee of one percent (1%) of the gross proceeds
received by the Company from the sale of the Placement Securities upon
consummation of a Business Combination. Such contingent placement fee shall
be
held in the Trust Fund and shall be forfeited in the event the Business
Combination does not occur.
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Group LLC
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2006
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1.5.
Contingent
Portion of Underwriters’ Discount .
The
Representative, on behalf of itself and the other Underwriters, agrees that
1%
of the gross proceeds from the sale of the Firm Units ($2,250,000), 3% of the
gross proceeds from the sale of any Option Units (an additional $1,012,500
if
the over-allotment option is exercised in full) and 1% from the sale of the
Placement Units ($82,540) (collectively, such amounts are the “ Contingent
Discount ”)
will
be deposited in and held in the Trust Fund and payable to the Underwriters
and
the Representative, along with any interest accrued thereon (net of taxes
payable), in respect of any IPO Shares (defined in Section 7.6 hereof) which
are
not redeemed pursuant to Section 7.6 hereof, upon the consummation of a Business
Combination. The Representative, on behalf of itself and the other Underwriters,
agrees that the several Underwriters shall forfeit any rights or claims to
the
Contingent Discount and any interest accrued thereon (net of taxes payable)
in
respect of any IPO Shares that are redeemed pursuant to Section7.6 hereof.
In
addition, in the event that the Company is unable to consummate a Business
Combination and Continental Stock Transfer & Trust Company (“CST”),
the
trustee of the Trust Fund, commences liquidation of the Trust Fund as provided
in the Trust Agreement, the Representative, on behalf of itself and the other
Underwriters, agrees that (i) the several Underwriters shall forfeit any rights
or claims to the Contingent Discount and any interest accrued thereon (net
of
taxes payable); and (ii) the Contingent Discount, together with the all other
amounts on deposit in the Trust Fund, and any accrued interest thereon (net
of
taxes payable), shall be distributed on a pro-rata basis among the holders
of
the shares of Common Stock included in the Units sold in the Offering.
1.6.
Loan.
Concurrently with the Closing, ____________ will loan the Company $3,675,000
($4,350,000 if the Over-allotment Option is exercised in full, such loan, the
“Loan”).
The
Loan will bear interest at ______% per annum and will be, at the option of
________, either (a) payable in full, with any accrued and unpaid interest
thereon, upon the consummation of a Business Combination or (b) convertible
into
shares of the Company’s Common Stock at $10.00 per share of Common Stock, upon
the consummation of a Business Combination. The proceeds of the Loan shall
be
deposited in the Trust Fund and shall be used solely to enable the Company
to
________________. _________ agrees to waive any and all rights to the Loan,
including rights to any accrued and unpaid interest, in the event the Company
cannot consummate a Business Combination or is otherwise forced to liquidate
or
dissolve, in which case the Loan and any accrued but unpaid interest thereon
shall be used to satisfy the claims of the holders of shares of the Company’s
Common Stock included in the Units sold in the Offering, including the Units
sold pursuant to the Over-allotment Option.
2. Representations
and Warranties of the Company.
The Company represents and warrants to the Underwriters as follows:
2.1. Filing
of Registration Statement.
5
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Group LLC
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2006
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2.1.1. Pursuant
to the Act.
The Company has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement and an amendment or amendments thereto, on Form S-1
(File No. 333-131648), including any related preliminary prospectus (the
“Preliminary
Prospectus”),
for
the registration of the Public Securities under the Act, which registration
statement and amendment or amendments have been prepared by the Company in
conformity with the requirements of the Act, and the rules and regulations
(the
“Regulations”)
of the
Commission under the Act. The conditions for use of Form S-1 to register
the Offering under the Act, as set forth in the General Instructions to such
Form, have been satisfied. Except as the context may otherwise require, such
registration statement, as amended, on file with the Commission at the time
the
registration statement becomes effective (including the prospectus, financial
statements, schedules, exhibits and all other documents filed as a part thereof
or incorporated therein and all information deemed to be a part thereof as
of
such time pursuant to Rule 430A of the Regulations), is hereinafter called
the
“Registration
Statement,”
and
the form of the final prospectus dated the Effective Date included in the
Registration Statement (or, if applicable, the form of final prospectus
containing information permitted to be omitted at the time of effectiveness
by
Rule 430A of the Regulations filed with the Commission pursuant to Rule 424
of
the Regulations), is hereinafter called the “Prospectus.”
For
purposes of this Agreement, “Time
of Sale”,
as
used in the Act, means [ ] p.m., New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared a preliminary
prospectus, dated _______, 2006, for distribution by the Underwriters (the
“Sale
Preliminary Prospectus”).
If
the
Company has filed, or is required pursuant to the terms hereof to file, a
registration statement pursuant to Rule 462(b) under the Act registering
additional Securities of any type (a “Rule
462(b) Registration Statement”),
then,
unless otherwise specified, any reference herein to the term “Registration
Statement”
shall
be deemed to include such Rule 462(b) Registration Statement. Other than a
Rule
462(b) Registration Statement, which, if filed, becomes effective upon filing,
no other document with respect to the Registration Statement has heretofore
been
filed with the Commission. All of the Public Securities have been registered
under the Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the Securities
Act with the filing of such Rule 462(b) Registration Statement. The
Registration Statement has been declared effective by the Commission on the
date
hereof.
If,
subsequent to the date of this Agreement, the Company or the Representative
has
determined that at the Time of Sale the Sale Preliminary Prospectus included
an
untrue statement of a material fact or omitted a statement of material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and have agreed to provide an
opportunity to purchasers of the Firm Units to terminate their old purchase
contracts and enter into new purchase contracts, then the Sale Preliminary
Prospectus will be deemed to include any additional information available to
purchasers at the time of entry into the first such new purchase
contract.
2.1.2. Pursuant
to the Exchange Act.
The Company has filed with the Commission a Form 8-A (File Number
000-____________) providing for the registration under the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”),
of
the Units, the Common Stock and the Warrants. The registration of the
Units, Common Stock and Warrants under the Exchange Act has been declared
effective by the Commission on the date hereof.
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Group LLC
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2006
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2.2. No
Stop Orders, etc.
Neither the Commission nor, to the Company’s knowledge, any state regulatory
authority has issued any order or threatened to issue any order preventing
or
suspending the use of any Preliminary Prospectus or has instituted or, to the
best of the Company’s knowledge, threatened to institute any proceedings with
respect to such an order.
2.3. Disclosures
in Registration Statement.
2.3.1. 10b-5
Representation.
At the time of effectiveness of the Registration Statement (or at the time
any
post-effective amendment to the Registration Statement) and at all times
subsequent thereto up to the Closing Date and the Option Closing Date, if any,
the Registration Statement and the Prospectus contained or will contain all
material statements that are required to be stated therein in accordance with
the Act and the Regulations, and did or will, in all material respects, conform
to the requirements of the Act and the Regulations. Neither the Registration
Statement nor any Preliminary Prospectus or the Prospectus contained therein,
nor any amendment or supplement thereto, on their respective dates, nor the
Sale
Preliminary Prospectus as of the Time of Sale (or such subsequent Time of Sale
pursuant to Section 2.1.1) did or will contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein (in light of the circumstances
under
which they were made), not misleading. When any Preliminary Prospectus was
first filed with the Commission (whether filed as part of the Registration
Statement for the registration of the Securities or any amendment thereto or
pursuant to Rule 424(a) of the Regulations) and when any amendment thereof
or
supplement thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto complied or will
have been corrected in the Sale Preliminary Prospectus and the Prospectus to
comply in all material respects with the applicable provisions of the Act and
the Regulations and did not and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The representation
and
warranty made in this Section 2.3.1 does not apply to statements made or
statements omitted in reliance upon and in conformity with written information
furnished to the Company with respect to the Underwriters by the Representative
expressly for use in the Registration Statement, the Sale Preliminary Prospectus
or Prospectus or any amendment thereof or supplement thereto,
which
information, it is agreed, shall consist solely of the names of the several
Underwriters and the subsections captioned “Pricing
of Securities” and“Foreign
Regulatory Restrictions on Purchase of the Units” contained
in the section of the Prospectus entitled “Underwriting.”
2.3.2. Disclosure
of Agreements.
The agreements and documents described in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus conform to the descriptions thereof
contained therein and there are no agreements or other documents required to
be
described in the Registration Statement, the Sale Preliminary Prospectus or
the
Prospectus or to be filed with the Commission as exhibits to the Registration
Statement, that have not been so described or filed. Each agreement or
other instrument (however characterized or described) to which the Company
is a
party or by which its property or business is or may be bound or affected and
(i) that is referred to in the Prospectus or attached as an exhibit thereto,
or
(ii) is material to the Company’s business, has been duly and validly executed
by the Company, is in full force and effect in all material respects and is
enforceable against the Company and, to the Company’s knowledge, the other
parties thereto, in accordance with its terms, except (x) as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally, (y) as enforceability of any
indemnification or contribution provision may be limited under the federal
and
state securities laws, and (z) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought, and none of such agreements or instruments has been assigned
by
the Company, and neither the Company nor, to the Company’s knowledge, any other
party is in breach or default thereunder and, to the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a breach or default thereunder. To the Company’s
knowledge, performance by the Company of the material provisions of such
agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company
or
any of its assets or businesses, including, without limitation, those relating
to environmental laws and regulations.
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2.3.3. Prior
Securities Transactions.
No securities of the Company have been sold by the Company or by or on behalf
of, or for the benefit of, any person or persons controlling, controlled by,
or
under common control with the Company since the date of the Company’s formation,
except as disclosed in the Registration Statement.
2.3.4. Regulations.
The
disclosures in the Registration Statement concerning the effects of Federal,
State and local regulation on the Company’s business as currently contemplated
are correct in all material respects and do not omit to state a material fact
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading.
2.4. Changes
After Dates in Registration Statement.
2.4.1. No
Material Adverse Change.
Except
as
contemplated in the Prospectus, since the respective dates as of which
information is given in the Prospectus: (i) there has been no material adverse
change in the condition, financial or otherwise, or business prospects of the
Company; (ii) there have been no material transactions entered into by the
Company, other than as contemplated pursuant to this Agreement; (iii) no member
of the Company’s board of directors or management has resigned from any position
with the Company and (iv) no event or occurrence has taken place which
materially impairs, or would likely materially impair, with the passage of
time,
the ability of the members of the Company’s board of directors or management to
act in their capacities with the Company as described in the Registration
Statement, the
Sale
Preliminary Prospectus
and the
Prospectus.
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Group LLC
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2.4.2. Recent
Securities Transactions, etc.
Except
as contemplated in the Prospectus, subsequent to the respective dates as of
which information is given in the Prospectus,
the
Company has not: (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money; or (ii) declared or
paid any dividend or made any other distribution on or in respect to its capital
stock.
2.5. Independent
Accountants.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“GGK”),
whose
report is filed with the Commission as part of the Registration Statement and
included in the Registration Statement and the Prospectus, are independent
registered public accountants as required by the Act, the Regulations and the
Public Company Accounting Oversight Board (including
the rules and regulations promulgated by such entity, the “PCAOB”).
GGK
is duly registered and in good standing with the PCAOB. GGK
has
not, during the periods covered by the financial statements included in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
provided to the Company any non-audit services, as such term is used in
Section 10A(g) of the Exchange Act.
2.6. Financial
Statements; Statistical Data.
2.6.1. Financial
Statements.
The
financial statements, including the notes thereto and supporting schedules
included in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, fairly present the financial position and the results of operations
of the Company at the dates and for the periods to which they apply; and such
financial statements have been prepared in conformity with generally accepted
accounting principles of the United States, consistently applied throughout
the
periods involved; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
No
other
financial statements or supporting schedules are required to be included or
incorporated by reference in the Registration Statement, the
Sale
Preliminary Prospectus or the Prospectus.
The
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
disclose all material off-balance sheet transactions, arrangements, obligations
(including contingent obligations), and other relationships of the Company
with
unconsolidated entities or other persons that may have a material current or
future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses. There
are
no pro forma or as adjusted financial statements which are required to be
included in
the
Registration Statement, the
Sale
Preliminary Prospectus or the Prospectus
in
accordance with Regulation
S-X which have not been included as so required.
2.6.2. Statistical
Data.
The
statistical, industry-related and market-related data included in the
Registration Statement, the Sale Preliminary Prospectus and/or the Prospectus
are based on or derived from sources which the Company reasonably and in good
faith believes are reliable and accurate, and such data agree with the sources
from which they are derived.
2.7. Authorized
Capital; Options, etc.
The Company had at the date or dates indicated in each of the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, as the case
may
be, duly authorized, issued and outstanding capitalization as set forth in
the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. Based on the assumptions stated in the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus, the Company will have on
the
Closing Date the adjusted stock capitalization set forth therein. Except
as set forth in, or contemplated by, the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, on the Effective Date of the
Prospectus and on the Closing Date and the Option Closing Date, if any, there
will be no options, warrants, or other rights to purchase or otherwise acquire
any authorized, but unissued shares of Common Stock of the Company or any
security convertible into shares of Common Stock of the Company, or any
contracts or commitments to issue or sell shares of Common Stock or any such
options, warrants, rights or convertible securities.
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2.8. Valid
Issuance of Securities, etc.
2.8.1. Outstanding
Securities.
All issued and outstanding securities of the Company (including, without
limitation, the Placement Securities) have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof have no rights
of rescission with respect thereto, and are not subject to personal liability
by
reason of being such holders; and none of such securities were issued in
violation of the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company. The Public
Securities conform to the descriptions thereof contained in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus. Except with
respect to the Placement Securities, the offers and sales of the outstanding
Common Stock were at all relevant times either registered under the Act and
the
applicable state securities or Blue Sky laws or, based in part on the
representations and warranties of the purchasers of such shares of Common Stock,
exempt from such registration requirements.
2.8.2. Securities
Sold Pursuant to this Agreement.
The Securities have been duly authorized and reserved for issuance and when
issued and paid for, will be validly issued, fully paid and non-assessable;
the
holders thereof are not and will not be subject to personal liability by reason
of being such holders; the Securities are not and will not be subject to the
preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company; and all corporate action required
to
be taken for the authorization, issuance and sale of the Securities has been
duly and validly taken. The Securities conform in all material respects to
the descriptions thereof contained in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, as the case may be. When
issued, the Warrants will constitute valid and binding obligations of the
Company to issue and sell, upon exercise thereof and payment of the respective
exercise prices therefor, the number and type of securities of the Company
called for thereby in accordance with the terms thereof and such Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. The shares of Common Stock issuable upon
exercise of the Warrants have been reserved for issuance upon the exercise
of
the Warrants, and when issued in accordance with the terms of the Warrants,
will
be duly and validly authorized, validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal liability by
reason of being such holders.
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2.8.3. Placement
Warrants.
The
Placement Warrants constitute valid and binding obligations of the Company
to
issue and sell, upon exercise thereof and payment of the respective exercise
prices therefor, the number and type of securities of the Company called for
thereby in accordance with the terms thereof, and such Placement Warrants are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. The shares of Common Stock issuable upon
exercise of the Placement Warrants have been reserved for issuance upon the
exercise of the Placement Warrants and, when issued in accordance with the
terms
of the Placement Warrants, will be duly and validly authorized, validly issued,
fully paid and non-assessable, and the holders thereof are not and will not
be
subject to personal liability by reason of being such holders.
2.8.4. No
Integration.
Neither
the Company nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Act or the Regulations with the offer and sale of the Public Securities
pursuant to the Registration Statement.
2.9. Registration
Rights of Third Parties.
Except as set forth in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus, no holders of any securities of the Company
or
any rights exercisable for or convertible or exchangeable into securities of
the
Company have the right to require the Company to register any such securities
of
the Company under the Act or to include any such securities in a registration
statement to be filed by the Company.
2.10. Validity
and Binding Effect of Agreements.
This Agreement, the Warrant Agreement (as defined in Section 2.22 hereof),
the Trust Agreement, the Services Agreement (as defined in Section 3.7.2
hereof), the Subscription Agreement (as defined in Section 2.23.2 hereof),
the
Placement Unit Purchase Agreement (as defined in Section 2.23.2 hereof) and
the
Escrow Agreement (as defined in Section 2.23.3 hereof) have been duly and
validly authorized by the Company and constitute valid and binding agreements
of
the Company, enforceable against the Company in accordance with their respective
terms, except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under federal and state securities laws; and (iii)
that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
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2.11. No
Conflicts, etc.
The execution, delivery, and performance by the Company of this Agreement,
the
Warrant Agreement, the Trust Agreement, the Subscription Agreement, the Service
Agreement, the Placement Unit Purchase Agreement and the Escrow Agreement,
the
consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not
and
will not, with or without the giving of notice or the lapse of time or both:
(i)
result in a breach of, or conflict with any of the terms and provisions of,
or
constitute a default under, or result in the creation, modification, termination
or imposition of any lien, charge or encumbrance upon any property or assets
of
the Company pursuant to the terms of any agreement or instrument to which the
Company is a party except pursuant to the Trust Agreement referred to in
Section 2.24 hereof; (ii) result in any violation of the provisions of the
Amended and Restated Certificate of Incorporation or the By-Laws of the Company;
or (iii) violate any existing applicable law, rule, regulation, judgment, order
or decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or business.
2.12. No
Defaults; Violations.
No material default exists in the due performance and observance of any term,
covenant or condition of any material license, contract, indenture, mortgage,
deed of trust, note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any other material
agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is
subject. The Company is not in violation of any term or provision of its Amended
and Restated Certificate of Incorporation or Bylaws or in violation of any
material franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or
businesses.
2.13. Corporate
Power; Licenses; Consents.
2.13.1. Conduct
of Business.
The Company has all requisite corporate power and authority, and has all
necessary authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental regulatory officials and bodies that it needs
as of
the date hereof to conduct its business for the purposes described in the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. The disclosures in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus concerning the effects of federal,
state and local regulation on this Offering and the Company’s business purpose
as currently contemplated are correct in all material respects and do not omit
to state a material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading. Since its formation, the Company has conducted no business
and has incurred no liabilities other than in connection with and in furtherance
of the Offering.
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2.13.2. Transactions
Contemplated Herein.
The Company has all corporate power and authority to enter into this Agreement
and to carry out the provisions and conditions hereof, and all consents,
authorizations, approvals and orders required in connection therewith have
been
obtained. No consent, authorization or order of, and no filing with, any
court, government agency or other body is required for the valid issuance,
sale
and delivery, of the Securities and the consummation of the transactions and
agreements contemplated by this Agreement, the Warrant Agreement, the Trust
Agreement, the Subscription Agreement, the Services Agreement, the Placement
Unit Purchase Agreement and the Escrow Agreement and as contemplated by the
the
Sale Preliminary Prospectus and Prospectus, except with respect to applicable
federal and state securities laws and the rules and regulations promulgated
by
the National Association of Securities Dealers, Inc. (the “NASD”).
2.14. D&O
Questionnaires.
All information contained in the questionnaires (the “Questionnaires”)
completed by each of the Company’s stockholders immediately prior to the
Offering (the “Initial
Stockholders”)
and
provided to the Underwriters as an exhibit to his or her Insider Letter (as
defined in Section 2.23.1) is true and correct and the Company has not
become aware of any information which would cause the information disclosed
in
the questionnaires completed by each Initial Stockholder to become inaccurate
and incorrect.
2.15. Litigation;
Governmental Proceedings.
There is no action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to the best of the Company’s
knowledge, threatened against, or involving the Company or, to the best of
the
Company’s knowledge, any Initial Stockholder which has not been disclosed in the
Registration Statement, the Questionnaires, the Sale Preliminary Prospectus
and
the Prospectus.
2.16. Good
Standing.
The Company has been duly organized and is validly existing as a corporation
and
is in good standing under the laws of its state of incorporation and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or the conduct
of
business requires such qualification, except where the failure to qualify would
not have a material adverse effect on the Company, its business, assets or
operations.
2.17. No
Contemplation of a Business Combination.
Prior
to the date hereof, neither the Company, its officers and directors nor the
Initial Stockholders had, and as of the Closing, the Company and such officers
and directors and Initial Stockholders will not have had: (a) any specific
Business Combination under consideration or contemplation or (b) any substantive
interactions or discussions with any target business regarding a possible
Business Combination.
2.18. Transactions
Affecting Disclosure to NASD.
2.18.1. Except
as
described in the Sale Preliminary Prospectus and the Prospectus, there are
no
claims, payments, arrangements, agreements or understandings relating to the
payment of a finder’s, consulting or origination fee by the Company or any
Initial Stockholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any Initial Stockholder that may affect the Underwriters’
compensation, as determined by the NASD.
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2.18.2. The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing
to the Company persons who raised or provided capital to the Company; (ii)
to
any NASD member; or (iii) to any person or entity that has any direct or
indirect affiliation or association with any NASD member, within the twelve
months prior to the Effective Date, other than payments to Maxim in connection
with the Offering.
2.18.3. No
officer, director, or beneficial owner of any class of the Company’s securities
(whether debt or equity, registered or unregistered, regardless of the time
acquired or the source from which derived) (any such individual or entity,
a
“Company
Affiliate”)
is a
member, a person associated, or affiliated with a member of the NASD.
2.18.4. No
Company Affiliate is an owner of stock or other securities of any member of
the
NASD (other than securities purchased on the open market).
2.18.5. No
Company Affiliate has made a subordinated loan to any member of the
NASD.
2.18.6. No
proceeds from the sale of the Public Securities (excluding underwriting
compensation) or the Placement Securities will be paid to any NASD member,
or
any persons associated or affiliated with a member of the NASD, except as
specifically authorized herein and in the Placement Unit Purchase Agreement.
2.18.7. Except
with respect to Maxim, the Company has not issued any warrants or other
securities, or granted any options, directly or indirectly to anyone who is
a
potential underwriter in the Offering or a related person (as defined by NASD
rules) of such an underwriter within the 180-day period prior to the initial
filing date of the Registration Statement.
2.18.8. No
person
to whom securities of the Company have been privately issued within the 180-day
period prior to the initial filing date of the Registration Statement has any
relationship or affiliation or association with any member of the NASD.
2.18.9. No
NASD
member intending to participate in the Offering has a conflict of interest
with
the Company. For this purpose, a “conflict of interest” exists when a member of
the NASD and/or its associated persons, parent or affiliates in the aggregate
beneficially own 10% or more of the Company’s outstanding subordinated debt or
common equity, or 10% or more of the Company’s preferred equity. “Members
participating in the Offering” include managing agents, syndicate group members
and all dealers which are members of the NASD.
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2.18.10. Except
with respect to Maxim in connection with the Offering and the Private Placement,
the Company has not entered into any agreement or arrangement (including,
without limitation, any consulting agreement or any other type of agreement)
during the 180-day period prior to the initial filing date of the Registration
Statement, which arrangement or agreement provides for the receipt of any item
of value and/or the transfer or issuance of any warrants, options, or other
securities from the Company to an NASD member, any person associated with a
member (as defined by NASD rules), any potential underwriters in the Offering
and/or any related persons.
2.19. Foreign
Corrupt Practices Act.
Neither the Company nor any of the Initial Stockholders or any other person
acting on behalf of the Company has, directly or indirectly, given or agreed
to
give any money, gift or similar benefit (other than legal price concessions
to
customers in the ordinary course of business) to any customer, supplier,
employee or agent of a customer or supplier, or official or employee of any
governmental agency or instrumentality of any government (domestic or foreign)
or any political party or candidate for office (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or other person
who was, is, or may be in a position to help or hinder the business of the
Company (or assist it in connection with any actual or proposed transaction)
that (i) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have had a material adverse effect on the Company or the assets,
business or operations of the Company as reflected in any of the financial
statements contained in the Registration Statement and the Prospectus or (iii)
if not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company. The Company’s internal accounting
controls and procedures are sufficient to cause the Company to comply with
the
Foreign Corrupt Practices Act of 1977, as amended.
2.20. Patriot
Act.
Neither
the Company
nor any officer, director or Initial Stockholder has violated: (i) the Bank
Secrecy Act, as amended, (ii) the Money Laundering Control Act of 1986, as
amended, or (iii) the Uniting and Strengthening of America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT)
Act of 2001, and/or the rules and regulations promulgated under any such law,
or
any successor law.
2.21. Officers’
Certificate.
Any certificate signed by any duly authorized officer of the Company and
delivered to the Representative or to its counsel shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
2.22. Warrant
Agreement.
The Company has entered into a warrant agreement with respect to the Warrants
and the Placement Warrants with CST substantially in the form filed as an
exhibit to the Registration Statement (the “Warrant
Agreement”),
providing for, among other things, the payment of a warrant solicitation fee
as
contemplated by Section 3.9 hereof.
2.23. Agreements
With Initial Stockholders.
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2.23.1. Insider
Letters.
The Company has caused to be duly executed legally binding and enforceable
agreements (except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification, contribution or
noncompete provision may be limited under the federal and state securities
laws,
and (iii) that the remedy of specific performance and injunctive and other
forms
of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
annexed as Exhibits 10.1 through 10.7 to the Registration Statement (the
“Insider
Letter”),
pursuant to which each of the Initial Stockholders of the Company agree to
certain matters, including but not limited to, certain matters described as
being agreed to by them under the “Proposed Business” Section of the the
Sale Preliminary Prospectus and Prospectus.
2.23.2. Placement
Unit Purchase Agreement.
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Company’s Chief Operating Officer and President, or his
deignees, have each executed and delivered a subscription agreement, annexed
as
an exhibit to the Registration Statement (the “Subscription
Agreement”),
pursuant to which such parties have, among other things, purchased an aggregate
of 825,398 Placement Units in the Private Placement. Pursuant to the
Subscription Agreement the purchasers of the Placement Units have waived any
and
all rights and claims that they may have to any proceeds, and any interest
thereon, held in the Trust in respect of the shares of Common Stock included
in
such Placement Units in the event that a Business Combination is not consummated
and the Trust Fund is liquidated in accordance with the terms of the Trust
Agreement.
2.23.3. Escrow
Agreement.
The Company has caused the Initial Stockholders to enter into an escrow
agreement (the “Escrow
Agreement”)
with
CST (the “Escrow
Agent”)
substantially in the form filed as an exhibit to the Registration Statement
whereby the Common Stock owned by the Initial Stockholders (not including any
shares of Common Stock included in the Placement Units which any of them may
have purchased) will be held in escrow by the Escrow Agent, until the third
anniversary of the Effective Date. During such escrow period, the Initial
Stockholders shall be prohibited from selling or otherwise transferring such
shares (except (a) to spouses and children of Initial Stockholders and
trusts established for their benefit, (b) after a Business Combination in a
transaction whereby all the outstanding shares of the Company are exchanged
or
converted into cash or another entity’s securities, (c) for shares which they
may be required to surrender to the Company as described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus and (d) as
otherwise set forth in the Escrow Agreement) unless approved by the Company’s
public stockholders, but will retain the right to vote such shares. The
Escrow Agreement shall not be amended, modified or otherwise changed without
the
prior written consent of Maxim, such consent not to be unreasonably
withheld.
2.24. Investment
Management Trust Agreement.
The Company has entered into the Trust Agreement with respect to certain
proceeds of the Offering substantially in the form filed as an exhibit to the
Registration Statement.
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2.25. Covenants
Not to Compete.
No Initial Stockholder of the Company is subject to any noncompetition agreement
or non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be an Initial Stockholder, employee, officer
and/or director of the Company.
2.26. Investments.
No more than 45% of the “value” (as defined in Section 2(a)(41) of the
Investment Company Act of 1940 (“Investment
Company Act”))
of
the Company’s total assets consist of, and no more than 45% of the Company’s net
income after taxes is derived from, securities other than “Government
Securities” (as defined in Section 2(a)(16) of the Investment Company
Act).
2.27. Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.28. Related
Party Transactions. No relationship, direct or indirect, exists
between or among any of the Company or any affiliate of the Company, on the
one
hand, and any director, officer, shareholder, customer or supplier of the
Company or any affiliate of the Company, on the other hand, which is required
by
the Act, the Exchange Act or the Regulations to be described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus which is not
so
described and described as required. There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit
of
any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus. The Company has not extended or
maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any director or officer
of
the Company.
2.29. No
Influence.
The
Company has not offered, or caused the Underwriters to offer, the Firm Units
to
any person or entity with the intention of unlawfully influencing: (a) a
customer or supplier of the Company or any affiliate of the Company to alter
the
customer’s or supplier’s level or type of business with the Company or such
affiliate or (b) a journalist or publication to write or publish favorable
information about the Company or any such affiliate.
2.30. [intentionally
omitted]
2.31. AMEX
Rules.
As of
the Effective Date, the Company’s Board of Directors (the shall have validly
appointed an audit committee and nominating committee whose composition
satisfies the requirements of the rules and regulations of the American Stock
Exchange (“AMEX”)
and
the Company’s Board of Directors and/or audit committee and the nominating
committee has each adopted a charter that satisfies the requirements of AMEX.
Neither the Company’s Board of Directors nor the audit committee thereof has
been informed, nor is any director of the Company aware, of: (i) any significant
deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal control over financial reporting.
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2.32. ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
The
Company is in material compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act
of 2002, as amended, and the rules and regulations promulgated thereunder and
related or similar rules and regulations promulgated by AMEX or any other
governmental or self regulatory entity or agency, except for such violations
which, singly or in the aggregate, would not have a material adverse effect
on
the
Company, its business, assets or operations.
Without
limiting the generality of the foregoing, as of the effective date of the
Registration Statement: (i) all members of the Company’s Board of Directors who
are required to be “independent” (as that term is defined under applicable laws,
rules and regulations), including, without limitation, all members of the audit
committee of the Company’s Board of Directors, meet the qualifications of
independence as set forth under applicable laws, rules and regulations and
(ii)
the audit committee of the Company’s Board of Directors has at least one member
who is an “audit committee financial expert” (as that term is defined under
applicable laws, rules and regulations).
2.33. Listing
of the Public Securities on AMEX.
As of
the Effective Date, the Public Securities have been authorized for listing
on
the AMEX and, to the Company’s knowledge, no proceedings have been instituted or
threatened which would effect, and no event or circumstance has occurred as
of
the Effective Date which is reasonably likely to effect, the listing of the
Public Securities on the AMEX.
2.34. Definition
of “Knowledge”.
As
used
in herein, the term “knowledge
of the Company”
(or
similar language) shall mean the knowledge of the officers and directors of
the
Company who are named in the Sale Preliminary Prospectus and Prospectus, with
the assumption that such officers and directors shall have made reasonable
and
diligent inquiry of the matters presented.
3. Covenants
of the Company.
The Company covenants and agrees as follows:
3.1. Amendments
to Registration Statement.
The Company will deliver (whether physically or through compliance with Rule
172
under the Act or any similar rule) to the Representative, prior to filing,
any
amendment or supplement to the Registration Statement or Prospectus proposed
to
be filed after the Effective Date and not file any such amendment or supplement
to which the Representative shall reasonably object in writing.
3.2. Federal
Securities Laws.
3.2.1. Compliance.
During the time when a prospectus (or in lieu thereof the notice referred to
in
Rule 173(a)) is required to be delivered under the Act (whether physically
or
through compliance with Rule 172 under the Act or any similar rule), the Company
will use all reasonable efforts to comply with all requirements imposed upon
it
by the Act, the Regulations and the Exchange Act and by the regulations under
the Exchange Act, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Public Securities in accordance
with the provisions hereof and the Prospectus. If at any time when a
prospectus (or in lieu thereof the notice referred to in Rule 173(a)) relating
to the Public Securities is required to be delivered under the Act (whether
physically or through compliance with Rule 172 under the Act or any similar
rule), any event shall have occurred as a result of which, in the opinion of
counsel for the Company or counsel for the Underwriters, the Sale Preliminary
Prospectus and the Prospectus, as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in light
of
the circumstances under which they were made, not misleading, or if it is
necessary during such period to amend the Registration Statement or amend or
supplement the Sale Preliminary Prospectus and Prospectus to comply with the
Act, the Company will notify the Representative promptly and prepare and file
with the Commission, subject to Section 3.1 hereof, an appropriate
amendment to the Registration Statement or amendment or supplement to the Sale
Preliminary Prospectus and Prospectus (at the expense of the Company) so as
to
correct such statement or omission or effect such compliance.
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3.2.2. Filing
of Final Prospectus.
The Company will file the Prospectus (in form and substance satisfactory to
the
Representative) with the Commission pursuant to the requirements of Rule 424
of
the Regulations.
3.2.3. Exchange
Act Registration.
For a period of five years from the Effective Date, or until such earlier time
upon which the Company is required to be liquidated, the Company will use its
best efforts to maintain the registration of the Units, Common Stock and
Warrants under the provisions of the Exchange Act. The Company will not
deregister the Units under the Exchange Act without the prior written consent
of
Maxim.
3.2.4. ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance.
As soon
as it is legally required to do so, the
Company shall take all actions necessary to obtain and thereafter maintain
material compliance with each applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of
2002 and the rules and regulations promulgated thereunder and related or similar
rules and regulations promulgated by any other governmental or self regulatory
entity or agency with jurisdiction over the Company.
3.3. Blue
Sky Filing.
The Company will endeavor in good faith, in cooperation with the Representative,
at or prior to the time the Registration Statement becomes effective, to qualify
the Public Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may reasonably designate, provided that
no
such qualification shall be required in any jurisdiction where, as a result
thereof, the Company would be subject to service of general process or to
taxation as a foreign corporation doing business in such jurisdiction. In
each jurisdiction where such qualification shall be effected, the Company will,
unless the Representative agrees that such action is not at the time necessary
or advisable, use all reasonable efforts to file and make such statements or
reports at such times as are or may be required by the laws of such
jurisdiction.
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3.4. Delivery
of Materials to Underwriters.
The Company will deliver to each of the several Underwriters, without charge
and
from time to time during the period when a prospectus is required to be
delivered under the Act or the Exchange Act, such number of copies of each
Sale
Preliminary Prospectus, the Prospectus and all amendments and supplements to
such documents as such Underwriters may reasonably request and, as soon as
the
Registration Statement or any amendment or supplement thereto becomes effective,
deliver to the Representative two manually executed Registration Statements,
including exhibits, and all post-effective amendments thereto and copies of
all
exhibits filed therewith or incorporated therein by reference and all manually
executed consents of certified experts.
3.5. Effectiveness
and Events Requiring Notice to the Representative.
The Company will use its best efforts to cause the Registration Statement to
remain effective and will notify the Representative immediately and confirm
the
notice in writing: (i) of the effectiveness of the Registration Statement
and any amendment thereto; (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or any
post-effective amendment thereto or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or of the initiation, or the
threatening, of any proceeding for that purpose; (iii) of the issuance by any
state securities commission of any proceedings for the suspension of the
qualification of the Public Securities for offering or sale in any jurisdiction
or of the initiation, or the threatening, of any proceeding for that purpose;
(iv) of the mailing and delivery to the Commission for filing of any amendment
or supplement to the Registration Statement or Prospectus; (v) of the receipt
of
any comments or request for any additional information from the Commission;
and
(vi) of the happening of any event during the period described in
Section 3.4 hereof that, in the judgment of the Company or its counsel,
makes any statement of a material fact made in the Registration Statement,
the
Sale Preliminary Prospectus or the Prospectus untrue or that requires the making
of any changes in the Registration Statement, the Sale Preliminary Prospectus
and Prospectus in order to make the statements therein, (with respect to the
Prospectus and the Sale Preliminary Prospectus and in light of the circumstances
under which they were made), not misleading. If the Commission or any
state securities commission shall enter a stop order or suspend such
qualification at any time, the Company will make every reasonable effort to
obtain promptly the lifting of such order.
3.6. Review
of Financial Statements.
Until the earlier of five years from the Effective Date, or until such earlier
upon which the Company is required to be liquidated, the Company, at its
expense, shall cause its regularly engaged independent certified public
accountants to review (but not audit) the Company’s financial statements for
each of the first three fiscal quarters prior to the announcement of quarterly
financial information, the filing of the Company’s Form 10-Q quarterly report
and the mailing of quarterly financial information to stockholders.
3.7. Affiliated
Transactions.
3.7.1. Business
Combinations.
The Company will not consummate a Business Combination with any entity which
is
affiliated with any Initial Stockholder unless the Company obtains an opinion
from an independent investment banking firm that the Business Combination is
fair to the Company’s stockholders from a financial perspective.
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3.7.2. Administrative
Services.
The Company has entered into an agreement (the “Services
Agreement”)
with
___________, in the form filed as an exhibit to the Registration Statement
pursuant to which the ____ will make available to the Company general and
administrative services including office space, utilities, receptionist and
secretarial support for the Company’s use for $[____]
per
month, $[_____]
of which
shall be payable out of the interest earned on the Trust Fund.
3.7.3. Compensation.
Except as set forth in this Section 3.7, the Company shall not pay any
Initial Stockholder or any of their affiliates any fees or compensation from
the
Company, for services rendered to the Company prior to, or in connection with,
this Offering or the consummation of a Business Combination; provided
that
the
Initial Stockholders shall be entitled to reimbursement from the Company for
their out-of-pocket expenses incurred on the Company’s behalf, which includes an
aggregate of $______ in loans which were made to the Company prior to the
effective date of the Registration Statement and expenses incurred by them
in
connection with seeking and consummating a Business Combination.
3.8. Secondary
Market Trading and Standard & Poor’s.
In the
event the Public Securities are not listed on the New York Stock Exchange or
AMEX or quoted on the Nasdaq National Market: (a) the Company will apply to
be
included in Standard and Poor’s Daily News and Corporation Records Corporate
Descriptions for a period of five years from the consummation of a Business
Combination, (b) the Company shall take such steps as may be necessary to obtain
a secondary market trading exemption for the Company’s securities in the State
of California and (c) the Company shall also take such other action as may
be
reasonably requested by the Representative to obtain a secondary market trading
exemption in such other states as may be requested by the
Representative.
3.9. Warrant
Solicitation Fees.
The Company hereby engages Maxim, on a non-exclusive basis, as its agent for
the
solicitation of the exercise of the Warrants. The Company will
(i) assist Maxim with respect to such solicitation, if requested by Maxim,
and (ii) at Maxim’s request, provide Maxim, and direct the Company’s
transfer and warrant agent to provide to Maxim, at the Company’s cost, lists of
the record and, to the extent known, beneficial owners of, the Warrants.
Commencing one year from the Effective Date, the Company will pay Maxim a
commission of five percent (5%) of the cash proceeds received upon the exercise
of the Warrants for each Warrant exercised, payable on the date of such
exercise, on the terms provided for in the Warrant Agreement, only if permitted
under the rules and regulations of the NASD and only to the extent that an
investor who exercises his Warrants specifically designates, in writing, that
Maxim solicited his exercise. Maxim may engage sub-agents in its
solicitation efforts. The Company agrees to disclose the arrangement to
pay such solicitation fees to Maxim in any prospectus used by the Company in
connection with the registration of the shares of Common Stock underlying the
Warrants.
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3.10. Financial
Public Relations Firm.
Promptly after the execution of a definitive agreement for a Business
Combination, the Company shall retain a financial public relations firm
reasonably acceptable to the Representative for a term to be agreed upon by
the
Company and the Representative.
3.11. Reports
to the Representative.
3.11.1. Periodic
Reports, etc.
For a period of five years from the Effective Date or until such earlier time
upon which the Company is required to be liquidated, the Company will furnish
to
the Representative (Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Director of Investment Banking)
and its counsel copies of such financial statements and other periodic and
special reports as the Company from time to time furnishes generally to holders
of any class of its securities, and promptly furnish to the Representative:
(i)
a copy of each periodic report the Company shall be required to file with the
Commission; (ii) a copy of every press release and every news item and
article with respect to the Company or its affairs which was released by
the Company; (iii) a copy of each Form 8-K or Schedules 13D, 13G, 14D-1 or
13E-4 received or prepared by the Company; (iv) five copies of each Registration
Statement; (v) a copy of monthly statements, if any, setting forth such
information regarding the Company’s results of operations and financial position
(including balance sheet, profit and loss statements and data regarding
outstanding purchase orders) as is regularly prepared by management of the
Company; and (vi) such additional documents and information with respect to
the Company and the affairs of any future subsidiaries of the Company as the
Representative may from time to time reasonably request; provided that the
Representative shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and its counsel in connection with the Representative’s receipt
of such information. Documents filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”)
shall
be deemed to have been delivered to the Representative pursuant to this
section.
3.11.2. Transfer
Sheets.
For a period of five years following the Effective Date or until such earlier
time upon which the Company is required to be liquidated, the Company shall
retain a transfer and warrant agent acceptable to the Representative (the
“Transfer
Agent”)
and
during the two (2) year period following the Closing Date, will furnish to
the
Underwriters at the Company’s sole cost and expense such transfer sheets of the
Company’s securities as the Representative may request, including the daily and
monthly consolidated transfer sheets of the Transfer Agent and DTC.
Continental Stock Transfer & Trust Company is acceptable to the
Underwriters. In addition, for a period of two (2) years from the Closing Date,
the Company, at its expense, shall provide the Representative a subscription
to
the Company’s weekly Depository Transfer Company Security Position
Reports.
3.11.3. Secondary
Market Trading Survey.
In the
event the Public Securities are no longer listed or quoted, as the case may
be,
on the New York Stock Exchange, AMEX or the Nasdaq National Market, or until
such earlier time upon which the Company is required to be liquidated, the
Company shall engage Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP (“EG&S”),
for a
one-time fee of $5,000, to deliver and update to the Underwriters on a timely
basis, but in any event at the beginning of each fiscal quarter, a written
report detailing those states in which the Public Securities may be traded
in
non-issuer transaction under the Blue Sky laws of the fifty States (the
“Secondary
Market Trading Survey”).
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3.12. Disqualification
of Form S-1 and S-3.
For a period equal to seven
years from the date hereof, the Company will not take any action or actions
which may prevent or disqualify the Company’s use of Form S-1 or S-3 (or other
appropriate form) for the registration of the Warrants under the
Act.
3.13. Payment
of Expenses.
3.13.1. General
Expenses Related to the Offering.
The Company hereby agrees to pay on each of the Closing Date and the Option
Closing Date, if any, to the extent not paid at Closing Date, all fees and
expenses incident to the performance of the obligations of the Company under
this Agreement, including, but not limited to: (i) the preparation, printing,
filing and mailing (including the payment of postage with respect to such
mailing) of the Registration Statement, the Preliminary Prospectus, and the
final Prospectus and mailing of this Agreement and related documents, including
the cost of all copies thereof and any amendments thereof or supplements thereto
supplied to the Underwriters in quantities as may be required by the
Underwriters; (ii) the printing, engraving, issuance and delivery of the Units,
the shares of Common Stock and the Warrants included in the Units, including
any
transfer or other taxes payable thereon; (iii) the listing of the Public
Securities on AMEX; (iv) filing fees, costs and expenses incurred in registering
the Offering with the NASD (including all COBRADesk fees); (v) costs of placing
“tombstone” advertisements in The
Wall Street Journal, The New York Times
and a
third publication to be selected by the Representative not to exceed $20,000
in
the aggregate; (vi) fees and disbursements of the transfer and warrant agent;
(vii) the Company’s expenses associated with “due diligence” meetings arranged
by the Representative; (viii) the preparation, binding and delivery of leather
bound volumes in form and style reasonably satisfactory to the Representative
and transaction lucite cubes or similar commemorative items in a style and
quantity as reasonably requested by the Representative; (ix) all costs and
expenses associated with “road show” marketing and “due diligence” trips for the
Company’s management to meet with prospective investors, including without
limitation, all travel, food and lodging expenses associated with such trips;
and (x) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this
Section 3.13.1. The Representative may deduct from the net proceeds of the
Offering payable to the Company on the Closing Date, or the Option Closing
Date,
if any, the expenses set forth above to be paid by the Company to the
Representative and others. The Company also agrees that, if requested by the
Representative, it will engage and pay for an investigative search firm of
the
Representative’s choice to conduct an investigation of the principals of the
Company as shall be selected by the Representative (such investigation to cost
no more than $3,000 per person or $15,000 in the aggregate). If the Offering
is
successfully consummated, any amounts paid by the Company in connection with
such investigative search firm shall be credited against the non-accountable
expenses to be paid to the Representative pursuant to Section 3.13.2
hereof. If the Offering is not consummated for any reason whatsoever, except
as
a result of the Representatives or any Underwriter's breach or default with
respect to any of its obligations described in this Agreement, then the Company
shall reimburse the Representative in full for their out of pocket accountable
expenses actually incurred by the Representative, including, without limitation,
its legal fees (up to a maximum of $150,000, less any amounts previously
paid).
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3.13.2. Nonaccountable
Expenses.
The Company further agrees that in addition to the expenses payable pursuant
to
Section 3.13.1, on the Closing Date, it will pay to the Representative a
nonaccountable expense allowance equal to one percent (1%) of the gross proceeds
received by the Company from the sale of the Firm Units (of which $______ has
previously been paid) by deduction from the proceeds of the Offering
contemplated herein. In addition, the Company shall pay to the Representative
a
nonaccountable expense allowance equal to one percent (1%) of the gross proceeds
received by the Company from the sale of the Placement Securities.
3.13.3. Fee
on
Business Combination.
Upon
consummation of a Business Combination, the Company further agrees that in
addition to the expenses payable pursuant to Sections 3.13.1 and 3.13.2, it
will
pay to the Underwriters and the Representative the Contingent Discount.
3.14. Application
of Net Proceeds.
The Company will apply the net proceeds from the Private Placement and this
Offering received by it in a manner consistent with the application described
under the caption “Use Of Proceeds” in the Prospectus.
3.15. Delivery
of Earnings Statements to Security Holders.
The Company will make generally available to its security holders as soon as
practicable, but not later than the first day of the fifteenth full calendar
month following the Effective Date, an earnings statement (which need not be
certified by independent public or independent certified public accountants
unless required by the Act or the Regulations, but which shall satisfy the
provisions of Rule 158(a) under Section 11(a) of the Act) covering a period
of at least twelve consecutive months beginning after the Effective
Date.
3.16. Notice
to NASD.
3.16.1. Business
Combination.
In the
event any person or entity (regardless of any NASD affiliation or association)
is engaged to assist the Company in its search for a merger candidate or to
provide any other merger and acquisition services, the Company will provide
the
following to the NASD and Representative prior to the consummation of the
Business Combination: (i) complete details of all services and copies
of agreements governing such services; and (ii) justification as to why the
person or entity providing the merger and acquisition services should not be
considered an “underwriter and related person” with respect to the Company’s
initial public offering, as such term is defined in Rule 2710 of the NASD’s
Conduct Rules. The Company also agrees that proper disclosure of such
arrangement or potential arrangement will be made in the proxy statement which
the Company will file for purposes of soliciting stockholder approval for the
Business Combination.
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3.16.2. Broker/Dealer.
In the
event the Company intends to register as a broker/dealer, merge with or acquire
a registered broker/dealer, or otherwise become a member of NASD, it shall
promptly notify the NASD.
3.17. Stabilization. Neither
the Company, nor, to its knowledge, any of its employees, directors or
stockholders (without the consent of Maxim) has taken or will take, directly
or
indirectly, any action designed to or that has constituted or that might
reasonably be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.18. Internal
Controls.
The Company will maintain a system of internal accounting controls sufficient
to
provide reasonable assurances that: (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are
recorded as necessary in order to permit preparation of financial statements
in
accordance with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
3.19. Accountants.
For a period of five years from the Effective Date or until such earlier time
upon which the Company is required to be liquidated, the Company shall retain
GGK or other independent public accountants reasonably acceptable to
Maxim.
3.20. Form
8-K’s.
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 Offering. As
soon as the Audited Financial Statements become available, the Company shall
immediately file a Current Report on Form 8-K with the Commission, which
Report shall contain the Company’s Audited Financial Statements. The Company
shall make a similar filing upon Maxim’s exercise of the Over-allotment Option,
if any.
3.21. NASD.
The Company shall advise the NASD if it is aware that any 5% or greater
stockholder of the Company becomes an affiliate or associated person of an
NASD
member participating in the distribution of the Securities.
3.22. Corporate
Proceedings.
All
corporate proceedings and other legal matters necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby shall
have
been done to the reasonable satisfaction to counsel for the
Underwriters.
3.23. Investment
Company.
The
Company shall cause the proceeds of the Offering to be held in the Trust Fund
to
be invested only in “government securities” with specific maturity dates or in
money market funds meeting certain conditions under Rule 2a-7 promulgated under
the Investment Company Act as set forth in the Trust Agreement and disclosed
in
the Prospectus. The Company will otherwise conduct its business in a manner
so
that it will not become subject to the Investment Company Act. Furthermore,
once
the Company consummates a Business Combination, it will be engaged in a business
other than that of investing, reinvesting, owning, holding or trading
securities.
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3.24. Business
Combination Announcement.
Within
five (5) Business Days following the consummation by the Company of a Business
Combination, the Company shall
cause an announcement (“Business
Combination
Announcement”)
to be
placed, at its cost, in The
Wall Street Journal, The New York Times
and a
third publication to be selected by Maxim announcing the consummation of the
Business
Combination
and
indicating that Maxim was the managing underwriter in the Offering. The Company
shall supply Maxim with a draft of the Business
Combination
Announcement and provide Maxim with a reasonable advance opportunity to comment
thereon. The Company will not place the Business
Combination
Announcement without the final approval of Maxim, which approval will not be
unreasonably withheld.
3.25. Press
Releases.
The
Company agrees that it will not issue press releases or engage in any other
publicity, without Maxim’s prior written consent (not to be unreasonably
withheld), for a period of forty (40) days after the Closing Date.
3.26. Key-Man
Insurance. Prior
to
the consummation of the Business Combination, the Company will obtain key person
life insurance with an insurer rated at least AA or better in the most recent
addition of “Best’s Life Reports” in the aggregate amount of $2,000,000 on the
lives of ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ Theotokis prior to the Closing
Date. Such insurance shall be maintained in full force and effect for a period
of three years from the consummation of the Business Combination. The Company
shall be the sole beneficiary of such policy.
3.27. Electronic
Prospectus. The
Company shall cause to be prepared and delivered to the Representative, at
its
expense, within one (1) Business Day from the effective date of this Agreement,
an Electronic Prospectus
to be used by the Underwriters in connection with the Offering. As used herein,
the term “Electronic
Prospectus”
means
a
form of prospectus, and any amendment or supplement thereto, that meets each
of
the following conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representative, that may be transmitted electronically
by
the other Underwriters to offerees and purchasers of the Units for at least
the
period during which a Prospectus relating to the Units is required to be
delivered under the Securities Act; (ii) it shall disclose the same information
as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇, except to the
extent that graphic and image material cannot be disseminated electronically,
in
which case such graphic and image material shall be replaced in the electronic
prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or
convertible into a paper format or an electronic format, satisfactory to the
Representative, that will allow recipients thereof to store and have
continuously ready access to the prospectus at any future time, without charge
to such recipients (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt
of a request by an investor or his or her representative within the period
when
a prospectus relating to the Units is required to be delivered under the
Securities Act, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
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3.28. Reservation
of Shares.
The
Company will reserve and keep available that maximum number of its authorized
but unissued securities which are issuable upon exercise of the Warrants, the
Placement Units and the Placement Warrants outstanding from time to time.
3.29. Board
Advisor.
The
Company agrees that it will, upon completion of the proposed public offering
contemplated herein, for a period of no less than two (2) years, engage a
designee of the Representative as an advisor (“Advisor”)
to its
Board of Directors where such Advisor shall attend meetings of the Board,
receive all notices and other correspondence and communications sent by the
Company to members of its Board of Directors provided, that such Advisor shall
not be entitled to any compensation, other than reimbursement for all costs
incurred in attending such meetings including, food, lodging, and
transportation. The Company further agrees that, during said two (2) year
period, it shall schedule no less than four (4) formal and “in person” meetings
of its Board of Directors in each such year at which meetings such Advisor
shall
be permitted to attend as set forth herein; said meetings shall be held
quarterly each year and ten (10) days advance notice of such meetings shall
be
given to the Advisor. Further, during such two (2) year period, the Company
shall give notice to the Representative with respect to any proposed
acquisitions, mergers, reorganizations or other similar transactions. The
Company shall indemnify and hold such Advisor harmless against any and all
claims, actions, damages, costs and expenses, and judgments arising solely
out
of the attendance and participation of such Advisor at any such meeting
described herein, and, if the Company maintains a liability insurance policy
affording coverage for the acts of its officers and directors, it shall, if
possible, include such Advisor as an insured under such policy.
3.30. Right
of First Refusal. For
a
period of eighteen (18) months from the closing of a Business Combination,
the
Company grants the Representative the right of first refusal to act as lead
underwriter or minimally as a co-manager with at least 50% of the economics;
or,
in the case of a three-handed deal 33% of the economics, for any and all future
public and private equity and debt offerings, excluding ordinary course of
business financings such as bank lines of credit, accounts receivable, factoring
and financing generated by the Company or any successor to or any subsidiary
of
the Company.
3.31. Private
Placement Proceeds.
Immediately prior to the Closing, the Private Placement shall be consummated
and
the Company shall deposit $8,253,980 of the proceeds from the Private Placement
in the Trust Fund and shall provide Maxim with evidence of the
same.
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3.32. No
Amendment to Charter. The
following provisions (A) through (E) shall apply during the period commencing
from the filing of the Amended and Restated Certificate of Incorporation and
terminating upon the consummation of any Business Combination, and may not
be
amended prior to the consummation of any Business Combination.
(A) Prior
to
the consummation of any Business Combination, the Company shall submit such
Business Combination to its stockholders for approval regardless of whether
the
Business Combination is of a type which normally would require such stockholder
approval under the GCL. In the event that a majority of the shares cast at
the
meeting to approve the Business Combination are voted for the approval of such
Business Combination, the Company shall be authorized to consummate the Business
Combination; provided that the Company shall not consummate any Business
Combination if the holders of 30% or more of the Transaction Shares (as defined
below) exercise their redemption rights described in paragraph B
below.
(B) In
the
event that a Business Combination is approved in accordance with the above
paragraph (A) and is consummated by the Company, any stockholder of the Company
holding shares of Common Stock issued in the IPO (the “IPO
Shares”)
who
voted against the Business Combination may, contemporaneous with such vote,
demand that the Company redeem his IPO Shares into cash. If so demanded, the
Company shall, promptly after consummation of the Business Combination, redeem
such shares into cash at a per share redemption price equal to the original
purchase price of the units issued in the IPO plus such portion of the interest
earned on the Trust Fund as shall be determined by the Company and the managing
underwriter of the IPO. “Transaction
Shares”
shall
mean the IPO Shares, together with any shares of Common Stock issued by the
Company in a proposed off-shore transaction pursuant to Regulation S under
the
Securities Act of 1933, as amended, (the “Placement
Shares”).
“Trust Fund” shall mean the trust account established by the Company at the
consummation of its IPO and into which, among other funds, a certain amount
of
the net proceeds of the IPO is deposited.
(C) In
the
event that the Company does not consummate a Business Combination by the later
of (i) 18 months after the consummation of the IPO or (ii) 24 months after
the
consummation of the IPO in the event that either a letter of intent, an
agreement in principle or a definitive agreement to complete a Business
Combination was executed but was not consummated within such 18 month period
(such later date being referred to as the “Termination
Date”),
the
officers of the Company shall take all such action necessary to dissolve and
liquidate the Company as soon as reasonably practicable. In the event that
the
Company is so dissolved and liquidated, only the holders of IPO Shares shall
be
entitled to receive liquidating distributions and the Company shall pay no
liquidating distributions with respect to any other shares of capital stock
of
the Company.
(D) A
holder
of IPO Shares shall be entitled to receive distributions from the Trust Fund
only in the event of a liquidation of the Company and/or the Trust Fund or
in
the event he demands redemption of his shares in accordance with paragraph
(B),
above. In no other circumstances shall a holder of IPO Shares have any right
or
interest of any kind in or to the Trust Fund. A holder of Placement Shares
shall
not have any right or interest of any kind in or to the Trust Fund.
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(E) The
Board
of Directors shall be divided into three classes: Class A, Class B and Class
C.
The number of directors in each class shall be as nearly equal as possible.
At
the first election of directors by the incorporator, the incorporator shall
elect a Class C director for a term expiring at the Company’s third Annual
Meeting of Stockholders. The Class C director shall then elect additional Class
A, Class B and Class C directors. The directors in Class A shall be elected
for
a term expiring at the first Annual Meeting of Stockholders, the directors
in
Class B shall be elected for a term expiring at the second Annual Meeting of
Stockholders and the directors in Class C shall be elected for a term expiring
at the third Annual Meeting of Stockholders. Commencing at the first Annual
Meeting of Stockholders, and at each annual meeting thereafter, directors
elected to succeed those directors whose terms expire shall be elected for
a
term of office to expire at the third succeeding annual meeting of stockholders
after their election. Except as the GCL may otherwise require, in the interim
between annual meetings of stockholders or special meetings of stockholders
called for the election of directors and/or the removal of one or more directors
and the filling of any vacancy in that connection, newly created directorships
and any vacancies in the Board of Directors, including unfilled vacancies
resulting from the removal of directors for cause, may be filled by the vote
of
a majority of the remaining directors then in office, although less than a
quorum (as defined in the Company’s Bylaws), or by the sole remaining director.
All directors shall hold office until the expiration of their respective terms
of office and until their successors shall have been elected and qualified.
A
director elected to fill a vacancy resulting from the death, resignation or
removal of a director shall serve for the remainder of the full term of the
director whose death, resignation or removal shall have created such vacancy
and
until his successor shall have been elected and qualified.
3.32.1. The
Company acknowledges that the purchasers of the Firm Units and the Option Units
in the Offering shall be deemed to be third party beneficiaries of this Section
3.32.
3.32.2. The
Representative and the Company specifically agree that, except pursuant to
its
own terms, this Section 3.32 shall not be modified or amended in any
way.
3.33. Additional
Independent Directors.
Within
one (1) year of the Closing Date, the Company shall have appointed at least
two
(2) additional independent directors to serve on the Company’s Board of
Directors and one additional independent director to serve on each of the
Company’s audit committee and nominating committee in compliance with the rules
and regulations of AMEX.
3.34. AMEX
Listing.
The
Company will use its best efforts to maintain the listing of the Public
Securities on AMEX or other national securities exchange acceptable to the
Representative for a period of at least five (5) years from the date of this
Agreement.
4. Conditions
of Underwriters’ Obligations.
The obligations of the several Underwriters to purchase and pay for the Units,
as provided herein, shall be subject to the continuing accuracy of the
representations and warranties of the Company as of the date hereof and as
of
each of the Closing Date and the Option Closing Date, if any, to the accuracy
of
the statements of officers of the Company made pursuant to the provisions hereof
and to the performance by the Company of its obligations hereunder and to the
following conditions:
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4.1. Regulatory
Matters.
4.1.1. Effectiveness
of Registration Statement.
The Registration Statement shall have become effective not later than 5:00
P.M.,
New York time, on the date of this Agreement or such later date and time as
shall be consented to in writing by the Representative, and, at each of the
Closing Date and the Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending
or
contemplated by the Commission and any request on the part of the Commission
for
additional information shall have been complied with to the reasonable
satisfaction of EG&S, as counsel to the Underwriters.
4.1.2. NASD
Clearance.
By the Effective Date, the Representative shall have received clearance from
the
NASD as to the amount of compensation allowable or payable to the Underwriters
as described in the Registration Statement.
4.1.3. No
Commission Stop Order.
At each
of the Closing Date and the Option Closing Date, the Commission has not issued
any order or threatened to issue any order preventing or suspending the use
of
any Preliminary Prospectus, the Prospectus or any part thereof, and has not
instituted or threatened to institute any proceedings with respect to such
an
order.
4.1.4. No
Blue Sky Stop Orders.
No order suspending the sale of the Units in any jurisdiction designated by
the
Representative pursuant to Section 3.3 hereof shall have been issued on
either the Closing Date or the Option Closing Date, and no proceedings for
that
purpose shall have been instituted or shall be contemplated.
4.1.5. AMEX
Listing.
The
Public Securities shall have been approved for listing on AMEX.
4.2. Company
Counsel Matters.
4.2.1. Closing
Date Opinion of Counsel.
On the Closing Date, the Representative shall have received the favorable
opinion of Loeb & Loeb LLP (“Loeb”),
special counsel to the Company, dated the Closing Date, addressed to the
Representative and in form and substance satisfactory to the Representative
to
the effect that:
(i) The
Company has been duly organized and is validly existing as a corporation and
is
in good standing under the laws of its state of incorporation, with full power
and authority to own its properties and conduct its business as described in
the
Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. The Company is duly qualified and licensed and in good
standing as a foreign corporation in each jurisdiction in which its ownership
or
leasing of any properties or the character of its operations requires such
qualification or licensing, except where the failure to qualify would not have
a
material adverse effect on the Company, its business, assets or
operations.
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(ii) All
issued and outstanding securities of the Company (including, without limitation,
the Placement Securities) have been duly authorized and validly issued and
are
fully paid and non-assessable; the holders thereof are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any stockholder of the Company
arising by operation of law or under the Amended and Restated Certificate of
Incorporation or Bylaws of the Company. The offers and sales of the outstanding
Common Stock were at all relevant times either registered under the Act and
the
applicable state securities or Blue Sky Laws or exempt from such registration
requirements. The authorized and outstanding capital stock of the Company
is as set forth in the Sale Preliminary Prospectus and the Prospectus. The
Units, the Common Stock and the Warrants conform to the descriptions thereof
contained in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus.
(iii) The
Securities have been duly authorized and, when issued and paid for, will be
validly issued, fully paid and non-assessable; the holders thereof are not
and
will not be subject to personal liability by reason of being such holders.
The Securities are not and will not be subject to the preemptive rights of
any
holders of any security of the Company arising by operation of law or under
the
Amended and Restated Certificate of Incorporation or Bylaws of the Company
or,
to such counsel’s knowledge, similar rights that entitle or will entitle any
person to acquire any security from the Company upon issuance or sale
thereof. When issued, the Warrants will constitute valid and binding
obligations of the Company to issue and sell, upon exercise thereof and payment
therefor, the number and type of securities of the Company called for thereby
and such Warrants, when issued, are enforceable against the Company in
accordance with their respective terms, except: (a) as such enforceability
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (b) as enforceability of any indemnification or
contribution provision may be limited under the United States and state
securities laws; and (c) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses
and
to the discretion of the court before which any proceeding therefor may be
brought. The certificates representing the Securities are in due and
proper form. A sufficient number of shares of Common Stock have been reserved
for issuance upon exercise of the Warrants. The shares of Common Stock
underlying the Warrants will, upon exercise of the Warrants and payment of
the
exercise price thereof, be duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject to
preemptive or, to such counsel’s knowledge, similar rights that entitle or will
entitle any person to acquire any securities from the Company upon issuance
thereof.
(iv) The
Placement Warrants constitute valid and binding obligations of the Company
to
issue and sell, upon exercise thereof and payment therefor, the number and
type
of securities of the Company called for thereby, and such Placement Warrants
are
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally; (ii) as
enforceability of any indemnification or contribution provision may be limited
under federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. A sufficient number of shares of Common
Stock have been reserved for issuance upon exercise of the Placement Warrants.
The shares of Common Stock underlying the Placement Warrants will, upon exercise
of the Warrants and payment of the exercise price thereof, be duly and validly
issued, fully paid and non-assessable and will not have been issued in violation
of or subject to preemptive or, to such counsel’s knowledge, similar rights that
entitle or will entitle any person to acquire any securities from the Company
upon issuance thereof.
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(v) The
Company has full right, power and authority to execute and deliver this
Agreement, the Warrant Agreement, the Services Agreements, the Trust Agreement,
the Placement Unit Purchase Agreement, the Subscription Agreement and the Escrow
Agreement and to perform its obligations thereunder, and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of this Agreement, the Warrant Agreement, the Services Agreements,
the
Trust Agreement, the Placement Unit Purchase Agreement, the Escrow Agreement
and
the Subscription Agreement and consummation of the transactions contemplated
by
the Underwriting Agreement, the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus and as described in the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus have been duly and validly
taken.
(vi) The
Insider Letters, the Placement Unit Purchase Agreement and the Escrow Agreement
have been duly authorized, executed and delivered by the Initial Stockholders
(or, if applicable, their affiliates) party thereto and constitute the valid
and
binding obligations of such Initial Stockholders enforceable against them in
accordance with their respective terms, except: (a) as such enforceability
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally; (b) as enforceability of any indemnification or
contribution provisions may be limited under the federal and state securities
laws; and (c) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(vii) This
Agreement, the Warrant Agreement, the Services Agreements, the Subscription
Agreement, the Trust Agreement, the Placement Unit Purchase Agreement and the
Escrow Agreement have each been duly and validly authorized and, when executed
and delivered by the Company, constitute the valid and binding obligations
of
the Company, enforceable against the Company in accordance with their respective
terms, except: (a) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (b) as enforceability of any indemnification or contribution
provisions may be limited under the United States and state securities laws;
and
(c) that the remedy of specific performance and injunctive and other forms
of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
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(viii) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
the Escrow Agreement, the Trust Agreement, the Placement Unit Purchase Agreement
and the Services Agreements, the issuance and sale of the Securities and the
Representative’s Shares, the consummation of the transactions contemplated
hereby and thereby, and compliance by the Company with the terms and provisions
hereof and thereof, do not and will not, with or without the giving of notice
or
the lapse of time, or both, (a) to such counsel’s knowledge, conflict with, or
result in a breach of, any of the terms or provisions of, or constitute a
default under, or result in the creation or modification of any lien, security
interest, charge or encumbrance upon any of the properties or assets of the
Company pursuant to the terms of, any mortgage, deed of trust, note, indenture,
loan, contract, commitment or other agreement or instrument filed as an exhibit
to the Registration Statement, (b) result in any violation of the provisions
of
the Amended and Restated Certificate of Incorporation or the By-Laws of the
Company, or (c) to such counsel’s knowledge, violate any statute or any
judgment, order or decree, rule or regulation applicable to the Company of
any
court, domestic or foreign, or of any federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company,
its
properties or assets.
(ix) The
Registration Statement, each Preliminary Prospectus, the Prospectus and any
post-effective amendments or supplements thereto (other than the financial
statements included therein, as to which no opinion need be rendered) each
as of
their respective dates complied as to form in all material respects with the
requirements of the Act and Regulations. The Securities and each agreement
filed as an exhibit to the Registration Statement conform in all material
respects to the description thereof contained in the Registration Statement,
the
Sale Preliminary Prospectus and the Prospectus. No United States or state
statute or regulation required to be described in the Prospectus is not
described as required (except as to the Blue Sky laws of the various states,
as
to which such counsel expresses no opinions), nor are any contracts or documents
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement not so
described or filed as required (except for the contracts and documents described
in the “Underwriting” section of the Registration Statement, as to which
such counsel expresses no opinions).
(x) The
Registration Statement is effective under the Act. To such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act or applicable state
securities laws.
(xi) To
such
counsel’s knowledge, there is no action, suit or proceeding before or by any
court of governmental agency or body, domestic or foreign, now pending, or
threatened against the Company that is required to be described in the
Registration Statement.
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(xii) No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any judicial, regulatory or other
legal or governmental agency or body is required for the execution, delivery
and
performance of the Underwriting Agreement or consummation of the transactions
contemplated by the Underwriting Agreement, the Registration Statement, the
Sale
Preliminary Prospectus and the Prospectus, except for (1) such as may be
required under state securities or blue sky laws in connection with the purchase
and distribution of the Units by the Underwriters (as to which such counsel
need
express no opinion), (2) such as have been made or obtained under the Securities
Act and (3) such as are required by the NASD.
(xiii) The
statements under the captions “Comparison to offerings of blank check companies”
and “Description of Securities” and Item 14 of Part II of the Registration
Statement and the Sale Preliminary Prospectus, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred
to
therein, fairly present the information called for with respect to such legal
matters, documents and proceedings.
(xiv) The
Shares are duly authorized for listing on AMEX.
The
opinion of counsel shall further include a statement to the effect that such
counsel has participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants for the
Company and representatives of the Underwriters at which the contents of the
Registration Statement,
the
Prospectus, and related matters were discussed and although such counsel is
not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus (except as
otherwise set forth in this opinion), no facts have come to the attention of
such counsel which lead it to believe that the Registration Statement, the
Sale
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
as of the date of such opinion contained any untrue statement of a material
fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express
no
opinion with respect to the financial statements and schedules and other
financial and statistical data included in the Registration Statement, the
Sale
Preliminary Prospectus or the
Prospectus).
4.2.2. Option
Closing Date Opinion of Counsel.
On the Option Closing Date, if any, the Representative shall have received
the
favorable opinion of Loeb, dated the Option Closing Date, addressed to the
Representative and in form and substance reasonably satisfactory to the counsel
to the Representative, confirming as of the Option Closing Date, the statements
made by Loeb in its opinion delivered on the Closing Date.
4.2.3 Reliance.
In rendering such opinion, such counsel may rely: (i) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Representative) of other counsel reasonably acceptable to the Representative,
familiar with the applicable laws; and (ii) as to matters of fact, to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdiction having
custody of documents respecting the corporate existence or good standing of
the
Company, provided that copies of any such statements or certificates shall
be
delivered to the Underwriters’ counsel if requested. The opinion of
counsel for the Company and any opinion relied upon by such counsel for the
Company shall include a statement to the effect that it may be relied upon
by
counsel for the Underwriters in its opinion delivered to the
Underwriters.
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4.3. Cold
Comfort Letter.
At the time this Agreement is executed, and at each of the Closing Date and
the
Option Closing Date, if any, the Representative shall have received a letter,
addressed to the Representative and in form and substance satisfactory in all
respects (including the non-material nature of the changes or decreases, if
any,
referred to in clause (iii) below) to the Representative and to EG&S from
GGK dated, respectively, as of the date of this Agreement and as of the Closing
Date and the Option Closing Date, if any:
(i) Confirming
that they are independent accountants with respect to the Company within the
meaning of the Act and the applicable Regulations and that they have not, during
the periods covered by the financial statements included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, provided to
the
Company any non-audit services, as such term is used in Section 10A(g) of
the Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the stockholders
and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible
for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that:
(a)
the unaudited financial statements of the Company included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus do not comply
as
to form in all material respects with the applicable accounting requirements
of
the Act and the Regulations or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements of the Company included
in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus; or (b) at a date not later than five days prior to the Effective
Date, Closing Date or Option Closing Date, as the case may be, there was any
change in the capital stock or long-term debt of the Company, or any decrease
in
the stockholders’ equity of the Company as compared with amounts shown in the
December 31, 2005 balance sheet included in the Registration Statement, the
Sale
Preliminary Prospectus and the Prospectus, other than as set forth in or
contemplated by the Registration Statement, the Sale Preliminary Prospectus
and
the Prospectus, or, if there was any decrease, setting forth the amount of
such
decrease, and (c) during the period from December 31, 2005 to a specified date
not later than two (2) days prior to the Effective Date, Closing Date or Option
Closing Date, as the case may be, there was any decrease in revenues, net
earnings or net earnings per share of Common Stock, in each case as compared
with the corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement and the Prospectus, or, if there
was
any such decrease, setting forth the amount of such decrease;
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(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company;
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus in each case to the extent that such amounts,
numbers, percentages, statements and information may be derived from the general
accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not during the immediately preceding five year period brought
to
the attention of the Company’s management any reportable condition related to
internal structure, design or operation as defined in the Statement on Auditing
Standards No. 60 “Communication of Internal Control Structure Related Matters
Noted in an Audit,” in the Company’s internal controls; and
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as
the
Representative may reasonably request.
4.4. Officers’
Certificates.
4.4.1. Officers’
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representative shall have received a certificate of the Company signed by the
Chairman of the Board or the President and the Secretary or Assistant Secretary
of the Company, dated the Closing Date or the Option Closing Date, as the case
may be, respectively, to the effect that the Company has performed all covenants
and complied with all conditions required by this Agreement to be performed
or
complied with by the Company prior to and as of the Closing Date, or the Option
Closing Date, as the case may be, and that the conditions set forth in
Section 4.5 hereof have been satisfied as of such date and that, as of
Closing Date and the Option Closing Date, as the case may be, the
representations and warranties of the Company set forth in Section 2 hereof
are true and correct. In addition, the Representative will have received
such other and further certificates of officers of the Company as the
Representative may reasonably request.
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4.4.2. Secretary’s
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representative shall have received a certificate of the Company signed by the
Secretary or Assistant Secretary of the Company, dated the Closing Date or
the
Option Date, as the case may be, respectively, certifying: (i) that the By-Laws
and Amended and Restated Certificate of Incorporation of the Company are true
and complete, have not been modified and are in full force and effect; (ii)
that
the resolutions relating to the public offering contemplated by this Agreement
are in full force and effect and have not been modified; (iii) all
correspondence between the Company or its counsel and the Commission; and (iv)
as to the incumbency of the officers of the Company. The documents
referred to in such certificate shall be attached to such
certificate.
4.5. No
Material Changes.
Prior to and on each of the Closing Date and the Option Closing Date, if any:
(i) there shall have been no material adverse change or development involving
a
prospective material adverse change in the condition or prospects or the
business activities, financial or otherwise, of the Company from the latest
dates as of which such condition is set forth in the Registration Statement,
the
Sale Preliminary Prospectus and Prospectus; (ii) no action suit or proceeding,
at law or in equity, shall have been pending or threatened against the Company
or any Initial Stockholder before or by any court or federal or state
commission, board or other administrative agency wherein an unfavorable
decision, ruling or finding may materially adversely affect the business,
operations, prospects or financial condition or income of the Company, except
as
set forth in the Registration Statement, the Sale Preliminary Prospectus and
Prospectus; (iii) no stop order shall have been issued under the Act and no
proceedings therefor shall have been initiated or threatened by the Commission;
and (iv) the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto shall contain all material
statements which are required to be stated therein in accordance with the Act
and the Regulations and shall conform in all material respects to the
requirements of the Act and the Regulations, and none of the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus, or any amendment
or supplement thereto shall contain any untrue statement of a material fact
or
omits to state any material fact required to be stated therein or necessary
to
make the statements therein (in the case of the , the Sale Preliminary
Prospectus and Prospectus, in light of the circumstances under which they were
made), not misleading.
4.6. Delivery
of Agreements.
4.6.1. Effective
Date Deliveries.
On the Effective Date, the Company shall have delivered to the Representative
executed copies of the Escrow Agreement, the Trust Agreement, the Warrant
Agreement, the Services Agreement, all of the Insider Letters and the Placement
Unit Purchase Agreement.
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4.6.2. Closing
Date Deliveries.
On the Closing Date, the Company shall have delivered to CST executed
Representative’s Shares.
5. Indemnification.
5.1. Indemnification
of Underwriters.
5.1.1. General.
Subject to the conditions set forth below, the Company agrees to indemnify
and
hold harmless each of the Underwriters and each dealer selected by the
Representative that participates in the offer and sale of the Units (each a
“Selected
Dealer”)
and
each of their respective directors, officers and employees and each person,
if
any, who controls any such Underwriter (“controlling
person”)
within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any and all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of
any action between any of the Underwriters and the Company or between any of
the
Underwriters and any third party or otherwise) to which they or any of them
may
become subject under the Act, the Exchange Act or any other federal, state
or
local statute, law, rule, regulation or ordinance or at common law or otherwise
or under the laws, rules and regulation of foreign countries, arising out of
or
based upon any untrue statement or alleged untrue statement of a material fact
contained in (i) any Preliminary Prospectus, the Registration Statement, or
the
Prospectus (as from time to time each may be amended and supplemented); (ii)
in
any post-effective amendment or amendments or any new registration statement
and
prospectus relating to any the securities of the Company described herein;
or
(iii) any application or other document or written communication (in this
Section 5 collectively called “application”)
executed by the Company or based upon written information furnished by the
Company in any jurisdiction in order to qualify the Units under the securities
laws thereof or filed with the Commission, any state securities commission
or
agency, the American Stock Exchange, the OTC Bulletin Board or Nasdaq or any
securities exchange; or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon and in conformity
with written information furnished to the Company with respect to an Underwriter
by or on behalf of such Underwriter expressly for use in any Preliminary
Prospectus, the Registration Statement the Prospectus or any amendment or
supplement thereof, or in any application, as the case may be, which furnished
written information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. The Company agrees
promptly to notify the Representative of the commencement of any litigation
or
proceedings against the Company or any of its officers, directors or controlling
persons in connection with the issue and sale of the Securities or in connection
with the Preliminary Prospectus, the Registration Statement or the
Prospectus.
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5.1.2. Procedure.
If any action is brought against an Underwriter or controlling person in respect
of which indemnity may be sought against the Company pursuant to
Section 5.1.1, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the Company shall assume the
defense of such action, including the employment and fees of counsel (subject
to
the reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses
of
such counsel shall be at the expense of such Underwriter or such controlling
person unless: (i) the employment of such counsel at the expense of the Company
shall have been authorized in writing by the Company in connection with the
defense of such action; (ii) the Company shall not have employed counsel to
have
charge of the defense of such action; or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it
or
them which are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events the reasonable fees and expenses of not more than one additional firm
of
attorneys selected by the Underwriter and/or controlling person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein,
if the Underwriter or controlling person shall assume the defense of such action
as provided above, the Company shall have the right to approve the terms of
any
settlement of such action which approval shall not be unreasonably
withheld.
5.2. Indemnification
of the Company.
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, officers and employees and agents who
control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense described in the foregoing indemnity from the Company to
the
several Underwriters, as incurred, but only with respect to untrue statements
or
omissions, or alleged untrue statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or in any application, in reliance upon, and in strict
conformity with, written information furnished to the Company with respect
to
such Underwriter by or on behalf of the Underwriter expressly for use in such
Registration Statement, Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto or in any such application, which furnished written
information, it is expressly agreed, consists solely of the information
described in the last sentence of Section 2.3.1. In case any action shall
be brought against the Company or any other person so indemnified based on
any
Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against any Underwriter, such Underwriter shall have
the
rights and duties given to the Company, and the Company and each other person
so
indemnified shall have the rights and duties given to the several Underwriters
by the provisions of Section 5.1.2.
5.3. Contribution.
5.3.1. Contribution
Rights.
In order to provide for just and equitable contribution under the Act in any
case in which (i) any person entitled to indemnification under this
Section 5 makes claim for indemnification pursuant hereto but it is
judicially determined (by the entry of a final judgment or decree by a court
of
competent jurisdiction and the expiration of time to appeal or the denial of
the
last right of appeal) that such indemnification may not be enforced in such
case
notwithstanding the fact that this Section 5 provides for indemnification
in such case, or (ii) contribution under the Act, the Exchange Act or otherwise
may be required on the part of any such person in circumstances for which
indemnification is provided under this Section 5, then, and in each such
case, the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial offering price appearing
thereon and the Company is responsible for the balance; provided, that, no
person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding
the provisions of this Section 5.3.1, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Public Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay in respect of such losses, liabilities,
claims, damages and expenses. For purposes of this Section, each director,
officer and employee of an Underwriter or the Company, as applicable, and each
person, if any, who controls an Underwriter or the Company, as applicable,
within the meaning of Section 15 of the Act shall have the same rights to
contribution as the Underwriters or the Company, as applicable.
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5.3.2. Contribution
Procedure.
Within fifteen days after receipt by any party to this Agreement (or its
representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing
party”),
notify the contributing party of the commencement thereof, but the omission
to
so notify the contributing party will not relieve it from any liability which
it
may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party, and such
party
notifies a contributing party or its representative of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled
to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action
or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section are intended to
supersede, to the extent permitted by law, any right to contribution under
the
Act, the Exchange Act or otherwise available. The Underwriters’
obligations to contribute pursuant to this Section 5.3 are several and not
joint.
6. Default
by an Underwriter.
6.1. Default
Not Exceeding 10% of Firm Units or Option Units.
If any Underwriter or Underwriters shall default in its or their obligations
to
purchase the Firm Units or the Option Units, if the over-allotment option is
exercised, hereunder, and if the number of the Firm Units or Option Units with
respect to which such default relates does not exceed in the aggregate 10%
of
the number of Firm Units or Option Units that all Underwriters have agreed
to
purchase hereunder, then such Firm Units or Option Units to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion
to
their respective commitments hereunder.
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6.2. Default
Exceeding 10% of Firm Units or Option Units.
In the event that the default addressed in Section 6.1 above relates to more
than 10% of the Firm Units or Option Units, the Representative may, in its
discretion, arrange for the Representative or for another party or parties
to
purchase such Firm Units or Option Units to which such default relates on the
terms contained herein. If within one (1) Business Day after such default
relating to more than 10% of the Firm Units or Option Units the Representative
does not arrange for the purchase of such Firm Units or Option Units, then
the
Company shall be entitled to a further period of one (1) Business Day within
which to procure another party or parties satisfactory to the Representative
to
purchase said Firm Units or Option Units on such terms. In the event that
neither the Representative nor the Company arrange for the purchase of the
Firm
Units or Option Units to which a default relates as provided in this
Section 6, this Agreement may be terminated by the Representative or the
Company without liability on the part of the Company (except as provided in
Sections 3.15 and 5 hereof) or the several Underwriters (except as provided
in
Section 5 hereof); provided,
however,
that if
such default occurs with respect to the Option Units, this Agreement will not
terminate as to the Firm Units; and provided
further
that
nothing herein shall relieve a defaulting Underwriter of its liability, if
any,
to the other several Underwriters and to the Company for damages occasioned
by
its default hereunder.
6.3. Postponement
of Closing Date.
In the event that the Firm Units or Option Units to which the default relates
are to be purchased by the non-defaulting Underwriters, or are to be purchased
by another party or parties as aforesaid, the Representative or the Company
shall have the right to postpone the Closing Date or Option Closing Date for
a
reasonable period, but not in any event exceeding five (5) Business Days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement and/or the Prospectus, as the case may be, or in any
other documents and arrangements, and the Company agrees to file promptly any
amendment to, or to supplement, the Registration Statement and/or the
Prospectus, as the case may be, that in the opinion of counsel for the
Underwriters may thereby be made necessary. The term “Underwriter” as used in
this Agreement shall include any party substituted under this Section 6
with like effect as if it had originally been a party to this Agreement with
respect to such Securities.
7. Additional
Covenants.
7.1. Additional
Shares or Options.
The Company hereby agrees that until the Company consummates a Business
Combination, it shall not issue any 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 Fund or which vote as a class
with
the Common Stock on a Business Combination.
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7.2. Trust
Fund Waiver Acknowledgments.
The
Company hereby agrees that it will not commence its due diligence investigation
of any operating business or businesses which the Company seeks to acquire
(each, a “Target
Business”)
or
obtain the services of any vendor unless and until such Target Business or
vendor acknowledges in writing, whether through a letter of intent, memorandum
of understanding or other similar document (and subsequently acknowledges the
same in any definitive document replacing any of the foregoing), that (a) it
has
read the Prospectus and understands that the Company has established the Trust
Fund, initially in an amount of $______________________ (without giving effect
to any exercise of the Over-allotment Option) for the benefit of the Public
Stockholders and that, except for a portion of the interest earned on the
amounts held in the Trust Fund, the Company may disburse monies from the Trust
Fund only: (i) to the Public Stockholders in the event of the conversion of
their shares or the liquidation of the Company or (ii) to the Company after
it
consummates a Business Combination and (b) for and in consideration of the
Company (1) agreeing to evaluate such Target Business for purposes of
consummating a Business Combination with it or (2) agreeing to engage the
services of the vendor, as the case may be, such Target Business or vendor
agrees that it does not have any right, title, interest or claim of any kind
in
or to any monies of the Trust Fund (“Claim”)
and
waives any Claim it may have in the future as a result of, or arising out of,
any negotiations, contracts or agreements with the Company and will not seek
recourse against the Trust Fund for any reason whatsoever. The
foregoing letters shall substantially be in the form attached hereto
as Exhibit
A
and B,
respectively. Furthermore, each officer and director of the Company shall
execute a waiver letter in the form attached hereto as Exhibit
C.
7.3. Insider
Letters.
The Company shall not take any action or omit to take any action which would
cause a breach of any of the Insider Letters executed between each Initial
Stockholder and Maxim or the Placement Unit Purchase Agreement and will not
allow any amendments to, or waivers of, such Insider Letters or the Placement
Unit Purchase Agreement without the prior written consent of Maxim.
7.4. Amended
and Restated Certificate of Incorporation and By-Laws.
The Company shall not take any action or omit to take any action that would
cause the Company to be in breach or violation of its Amended and Restated
Certificate of Incorporation or By-Laws. Except as set forth in Section
3.32, prior to the consummation of a Business Combination, the Company will
not
amend its Amended and Restated Certificate of Incorporation or By-Laws without
the prior written consent of Maxim.
7.5. Proxy
and Other Information.
The Company shall provide counsel to the Representative with ten copies of
all
proxy information and all related material filed with the Commission in
connection with a Business Combination concurrently with such filing with the
Commission. In addition, the Company shall furnish any other state in
which its initial public offering was registered, such information as may be
requested by such state.
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7.6. Acquisition/Liquidation
Procedure.
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
(“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
stockholder approval under applicable state law; and (ii) that, in the event
that the Company does not effect a Business Combination within eighteen (18)
months from the consummation of this Offering (subject to extension for an
additional six-month period, as described in the Prospectus), the Company will
be liquidated and will distribute to all holders of IPO Shares (defined below)
an aggregate sum equal to the Company’s Liquidation Value. The term
“Liquidation
Value”
shall
mean the Company’s book value, as determined by the Company and audited by GGK.
In no event, however, will the Company’s Liquidation Value be less than the
amount contained in the Trust Fund at that time, inclusive of any net interest
income thereon. Only holders of IPO Shares (as defined below) shall be entitled
to receive liquidating distributions and the Company shall pay no liquidating
distributions with respect to any other shares of capital stock of the Company,
including the shares of Common Stock included in the Placement Units or
underlying the Placement Warrants. With respect to the Business Combination
Vote, the Company shall cause all of the Initial Stockholders to vote the shares
of Common Stock owned by them immediately prior to this Offering and the Private
Placement in accordance with the majority of the IPO Shares voted by the holders
of the IPO Shares in connection with the Business Combination Vote. In addition,
the Company shall cause the holders, including the Initial Stockholders, of
the
Placement Units to vote such shares in favor of the Business Combination.
At the time the Company seeks approval of any potential Business Combination,
the Company will offer each of the holders of the Company’s Common Stock issued
in this Offering (the “IPO
Shares”)
the
right to convert their IPO Shares at a per share price equal to $____________
(the “Conversion
Price”).
If
holders of less than 30% in interest of the Company’s IPO Shares and the shares
of Common Stock included in the Placement Units vote against such approval
of a
Business Combination, the Company may, but will not be required to, proceed
with
such Business Combination. If the Company elects to so proceed, it will
convert shares, based upon the Conversion Price, from those holders of IPO
Shares who affirmatively requested such conversion and who voted against the
Business Combination. If holders of 29.99% or more in interest of the
IPO Shares and the shares of Common Stock included in the Placement Units vote
against approval of any potential Business Combination, the Company will not
proceed with such Business Combination and will not convert such shares. Only
holders of IPO Shares shall be entitled to receive liquidating distributions
and
the Company shall pay no liquidating distributions with respect to any other
shares of capital stock of the Company.
7.7. Rule
419.
The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including, but not limited to, using its best efforts
to
prevent any of the Company’s outstanding securities from being deemed to be a
“▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under the Exchange Act during such
period.
7.8. Presentation
of Potential Target Businesses.
The Company shall cause each of the Initial Stockholders to agree that, in
order
to minimize potential conflicts of interest which may arise from multiple
affiliations, the Initial Stockholders will present to the Company for its
consideration, prior to presentation to any other person or company, any
suitable opportunity to acquire an operating business, until the earlier of
the
consummation by the Company of a Business Combination, the liquidation of the
Company or until such time as the Initial Stockholders cease to be an officer
or
director of the Company, subject to any pre-existing fiduciary obligations
the
Initial Stockholders might have.
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7.9. Target
Net Assets.
The
Company agrees that the initial Target Business that it acquires must have
a
fair market value equal to at least 80% of the Company’s net assets at the time
of such acquisition. The fair market value of such business must be determined
by the Board of Directors of the Company based upon standards generally accepted
by the financial community, such as actual and potential sales, earnings and
cash flow and book value. If the Board of Directors of the Company is not
able to independently determine that the Target Business has a fair market
value
of at least 80% of the Company’s net assets at the time of such acquisition, the
Company will obtain an opinion from an unaffiliated, independent investment
banking firm which is a member of the NASD with respect to the satisfaction
of
such criteria. The Company is not required to obtain an opinion from an
investment banking firm as to the fair market value if the Company’s Board of
Directors independently determines that the Target Business does have sufficient
fair market value.
7.10. Shortfall.
In the
event the Over-allotment Option is exercised in part or in full, to the extent
the amount held in the Trust Fund is less than $10.00 per Unit sold in this
Offering, the Company shall forgo up to the first $____________ in interest
earned on the amount held in the Trust Fund, which amount shall be maintained
in
the Trust Fund to cover such shortfall.
8. Representations
and Agreements to Survive Delivery.
Except as the context otherwise requires, all representations, warranties and
agreements contained in this Agreement shall be deemed to be representations,
warranties and agreements at the Closing Date or the Option Closing Date, if
any, and such representations, warranties and agreements of the Underwriters
and
Company, including the indemnity agreements contained in Section 5 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, the Company or any
controlling person, and shall survive termination of this Agreement or the
issuance and delivery of the Securities to the several Underwriters until the
earlier of the expiration of any applicable statute of limitations and the
seventh (7th) anniversary of the later of the Closing Date or the Option Closing
Date, if any, at which time the representations, warranties and agreements
shall
terminate and be of no further force and effect.
9. Effective
Date of This Agreement and Termination Thereof.
9.1. Effective
Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
9.2. Termination.
Maxim shall have the right to terminate this Agreement at any time prior to
any
Closing Date: (i) if any domestic or international event or act or occurrence
has materially disrupted or, in the Representative’s sole opinion, will in the
immediate future materially disrupt, general securities markets in the United
States; or (ii) if trading on the New York Stock Exchange, the AMEX, the Boston
Stock Exchange or on the NASD OTC Bulletin Board (or successor trading market)
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been fixed,
or maximum ranges for prices for securities shall have been required on the
NASD
OTC Bulletin Board or by order of the Commission or any other government
authority having jurisdiction, or (iii) if the United States shall have become
involved in a war or an increase in major hostilities, or (iv) if a banking
moratorium has been declared by a New York State or federal authority, or (v)
if
a moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities market, or (vi) if the Company
shall have sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether
or
not such loss shall have been insured, will, in the Representative’s sole
opinion, make it inadvisable to proceed with the delivery of the Units, or
(vii)
if any of the Company’s representations, warranties or covenants hereunder are
breached, or (viii) if the Representative shall have become aware after the
date
hereof of such a material adverse change in the conditions or prospects of
the
Company, or such adverse material change in general market conditions,
including, without limitation, as a result of terrorist activities after the
date hereof, as in the Representative’s judgment would make it impracticable to
proceed with the offering, sale and/or delivery of the Units or to enforce
contracts made by the Underwriters for the sale of the Units.
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9.3. Expenses.
In the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed
by
Section 3.13 hereof.
9.4. Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not
be in any way effected by, such election or termination or failure to carry
out
the terms of this Agreement or any part hereof.
10. Miscellaneous.
10.1. Notices.
All communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered by hand or reputable
overnight courier or delivered by facsimile transmission (with printed
confirmation of receipt) and confirmed and shall be deemed given when so mailed,
delivered or faxed (or if mailed, two days after such mailing):
If
to the
Representative:
Maxim
Group LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, Director of Investment Banking
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy (which shall not constitute notice) to:
Ellenoff
▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Company:
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
___________________
Fax:
(212) ___________________
With
a
copy (which shall not constitute notice) to:
Loeb
& Loeb LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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10.2. Headings.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
10.3. Amendment.
This Agreement may only be amended by a written instrument executed by each
of
the parties hereto.
10.4. Entire
Agreement.
This Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof, and supersede all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
10.5. Binding
Effect.
This Agreement shall inure solely to the benefit of and shall be binding upon
the Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or
claim
under or in respect of or by virtue of this Agreement or any provisions herein
contained.
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10.6. Governing
Law, Venue, etc.
10.6.1. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to the conflict of laws
principles thereof. Each of the Representative and the Company (and any
individual signatory hereto): (i) agrees that any legal suit, action or
proceeding arising out of or relating to this agreement and/or the transactions
contemplated hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York, (ii) waives any objection which such party may have or
hereafter to the venue of any such suit, action or proceeding and (iii)
irrevocably and exclusively consents to the jurisdiction of the New York Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding.
10.6.2. Each
of
the Representative and the Company (and any individual signatory hereto) further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York Supreme Court,
County of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the Company or
any
such individual mailed by certified mail to the Company’s address shall be
deemed in every respect effective service of process upon the Company or any
such individual in any such suit, action or proceeding, and service of process
upon the Representative mailed by certified mail to the Representative’s address
shall be deemed in every respect effective service process upon the
Representative, in any such suit, action or proceeding.
10.6.3. THE
COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON
BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVE ANY RIGHT TO A TRIAL
BY
JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS.
10.6.4. The
Company agrees that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys’
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
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10.7. Execution
in Counterparts.
This Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by fax or email/.pdf
transmission shall constitute valid and sufficient delivery
thereof.
10.8. Waiver,
etc.
The failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver
of
any such provision, nor to in any way effect the validity of this Agreement
or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party or parties against whom or which enforcement of such waiver is
sought; and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
[Signature
Page Follows]
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If
the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between
us.
| Very Truly Yours, | ||
| ENERGY INFRASTRUCTURE ACQUISITION CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Agreed to and accepted as of the date first written above: | |||
|
MAXIM
GROUP LLC, as Representative
of
the several Underwriters
|
|||
| By: | |||
|
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|||
|
Title:
Director of
Investment Banking
|
[Signature
Page to Underwriting Agreement, dated _______________, 2006]
49
SCHEDULE
A
22,500,000
Units
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
|
Maxim
Group LLC
|
||
|
22,500,000
|
EXHIBIT
A
Form
of Target Business Letter
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to the Final Prospectus of Energy
Infrastructure Acquisition Corp.
(the
“Company”),
dated
_______________, 2006 (the “Prospectus”).
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in Prospectus.
We
have
read the Prospectus and understand that the
Company has
established the Trust Fund, initially in an amount of at least $_____________
for the benefit of the Public Stockholders and the underwriters of the Company’s
initial public offering (the “Underwriters”)
and
that, except for a portion of the interest earned on the amounts held in the
Trust Fund, the
Company
may
disburse monies from the Trust Fund only: (i) to the Public Stockholders in
the
event of the redemption of their shares or the liquidation of the Company or
(ii) to the
Company and the Underwriters
after it
consummates a Business Combination.
For
and
in consideration of the
Company agreeing
to evaluate the undersigned for purposes of consummating a Business Combination
with it, the undersigned hereby agrees that it does not have any right, title,
interest or claim of any kind in or to any monies in the Trust Fund (each,
a
“Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the
Company and
will
not seek recourse against the Trust Fund for any reason whatsoever.
|
Print
Name of Target Business
|
|||
|
Authorized
Signature of Target Business
|
|||
EXHIBIT
B
Form
of Vendor Letter
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to the Final Prospectus of Energy
Infrastructure Acquisition Corp.
(the
“Company”),
dated
_______________, 2006 (the “Prospectus”).
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in Prospectus.
We
have
read the Prospectus and understand that the
Company
has
established the Trust Fund, initially in an amount of at least $_______________
for the benefit of the Public Stockholders and the underwriters of the Company’s
initial public offering (the “Underwriters”)
and
that, except for a portion of the interest earned on the amounts held in the
Trust Fund, the
Company
may
disburse monies from the Trust Fund only: (i) to the Public Stockholders in
the
event of the redemption of their shares or the liquidation of the Company or
(ii) to the
Company
and the
Underwriters after it consummates a Business Combination.
For
and
in consideration of the
Company
agreeing
to evaluate the undersigned for purposes of consummating a Business Combination
with it, the undersigned hereby agrees that it does not have any right, title,
interest or claim of any kind in or to any monies in the Trust Fund (each,
a
“Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the
Company
and will
not seek recourse against the Trust Fund for any reason whatsoever.
|
Print
Name of Vendor
|
|||
|
Authorized
Signature of Vendor
|
|||
EXHIBIT
C
Form
of Director/Officer Letter
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
The
undersigned officer or director of Energy
Infrastructure Acquisition Corp.
(the
“Company”)
hereby
acknowledges that the Company has established the Trust Fund, initially in
an
amount of at least $__________________ for the benefit of the Public
Stockholders and the underwriters of the Company’s initial public offering (the
“Underwriters”)
and
that the Company may disburse monies from the Trust Fund only: (i) to the Public
Stockholders in the event of the redemption of their shares or the liquidation
of the Company or (ii) to the Company and the Underwriters after it consummates
a Business Combination.
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 Fund (each, a “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any contracts or agreements with the Company and will not seek recourse
against the Trust Fund for any reason whatsoever.
Notwithstanding
the foregoing, such waiver shall not apply to any shares acquired by the
undersigned in the public market.
|
Print
Name of Officer/Director
|
|||
|
Authorized
Signature of Officer/Director
|
|||