UNDERWRITING AGREEMENT between PLATINUM ENERGY RESOURCES, INC. and CASIMIR CAPITAL, L.P. and CANTOR FITZGERALD & CO. As Representatives of the Underwriters named on Schedule I Dated: October __, 2005
between
PLATINUM
ENERGY RESOURCES, INC.
and
CASIMIR
CAPITAL, L.P.
and
CANTOR
▇▇▇▇▇▇▇▇▇▇ & CO.
As
Representatives of the Underwriters named on Schedule I
Dated:
October __, 2005
PLATINUM
ENERGY RESOURCES, INC.
Dear
Sirs:
The
undersigned, Platinum Energy Resources, Inc., a Delaware corporation
(“Company”),
hereby confirms its agreement with Casimir Capital, L.P. and Cantor ▇▇▇▇▇▇▇▇▇▇
& Co. (hereinafter referred to as “you,”
or the
“Representatives”)
and
with the other underwriters named on Schedule I
hereto
for which you are acting as acting as Representatives (the Representatives
and
the other Underwriters being collectively called 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
14,400,000 units (“Firm
Units”)
of the
Company at a purchase price (net of discounts and commissions) of $7.52 per
Firm
Unit. The Underwriters, severally and not jointly, agree to purchase
from
the Company the number of Firm Units set forth opposite their respective
names
on Schedule I
attached
hereto and made a part hereof at a purchase price (net of discounts and
commissions) of $7.52 per share. The Units are to be offered initially
to
the public (the “Offering”)
at the
offering price of $8.00 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 (“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 the Representatives inform the Company of their decision
to
allow earlier separate trading, but in no event will the Representatives
allow
separate trading until (i) until the business day following the earlier to
occur
of the expiration of the underwriters’ over-allotment option or its exercise in
full and (ii) .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.
Each
Warrant entitles its holder to exercise it to purchase one share of Common
Stock
for $6.00 during the period commencing on the later of the consummation by
the
Company of its “Business Combination” or one year from the Effective Date of the
Registration Statement and terminating on the four-year anniversary of the
Effective Date. “Business
Combination”
shall
mean any merger, capital stock exchange, asset or stock acquisition or other
similar business combination consummated by the Company with an operating
business (as described more fully in the Registration Statement).
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 following the Effective Date of the Registration
Statement (or the fourth business day following the Effective Date, if the
Registration Statement is declared effective at or after 4:30 p.m.) or at
such
earlier time as shall be agreed upon by the Representatives and the Company
at
the offices of one of the Representatives or at such other place as shall
be
agreed upon by the Representatives and the Company. The hour and
date of
delivery and payment for the Firm Units is called the “Closing
Date.”
Payment for the Firm Units shall be made on the Closing Date at the
Representatives’ election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds, payable
as follows: $105,408,000 of the proceeds received by the Company for the
Firm
Units shall be deposited in the trust fund established by the Company for
the
benefit of the public stockholders as described in the Registration Statement
(“Trust
Fund”)
pursuant to the terms of an Investment Management Trust Agreement (the
“Trust
Agreement”)
and
the remaining proceeds shall be paid to the order of the Company upon delivery
to you (or through the facilities of the Depository Trust Company (the
“DTC”)
of
certificates (in form and substance satisfactory to the Underwriters)
representing the Firm Units for the account of the Underwriters.
The
Firm Units shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two
full
business days prior to the Closing Date. The Company will permit
the
Representatives to examine and package the Firm Units for delivery, at least
one
full business day prior to the Closing Date. The Company shall not
be
obligated to sell or deliver any of the Firm Units except upon tender of
payment
by the Representatives for all the Firm Units.
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 2,160,000
units from the Company (the “Over-allotment
Option”).
Such additional 2,160,000 units 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 the Option Units will be the same price
per
Option Unit as the price per Firm Unit set forth in Section 1.1.1
hereof.
1.2.2
Exercise
of Option.
The Over-allotment Option granted pursuant to Section 1.2.1 hereof
may be
exercised by the Representatives as to all (at any time) or any part (from
time
to time) of the Option Units within 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 Representatives, 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 full business days after the date of the notice
or
such other time as shall be agreed upon by the Company and the Representatives,
at the offices of one of the Representatives or at such other place as shall
be
agreed upon by the Company and the Representatives. 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.
2
1.2.3
Payment
and Delivery.
Payment for the Option Units shall be made on the Option Closing Date at
the
Representatives’ election by wire transfer in Federal (same day) funds or by
certified or bank cashier’s check(s) in New York Clearing House funds, payable
as follows: $7.52 per Option Unit shall be deposited in the Trust Fund pursuant
to the Trust Agreement and the remaining proceeds shall be paid to the order
of
the Company upon delivery to you (or through the facilities of DTC) of
certificates (in form and substance satisfactory to the Underwriters)
representing the Option Units for the account of the
Underwriters. The certificates representing the Option Units
to be
delivered will be in such denominations and registered in such names as the
Representatives request not less than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be, and will be
made
available to the Representatives for inspection, checking and packaging at
the
aforesaid office of the Company’s transfer agent or correspondent not less than
one full business day prior to such Closing Date.
1.3
Representative’s
Purchase Option.
1.3.1
Purchase
Option.
The Company hereby agrees to issue and sell to Casimir Capital, L.P. (and/or
its
designees) on the Effective Date an option (“Representative’s
Purchase Option”)
for
the purchase of an aggregate of 720,000 units (the “Representatives’
Units”)
for an
aggregate purchase price of $100.00. Each of the Representatives’ Units is
identical to the Firm Units, except that the Warrants included in the
Representatives’ Units have an exercise price of $7.50 (125% of the exercise
price of the Warrants included in the units sold to the public).
The
Representative’s Purchase Option shall be exercisable, in whole or in part,
commencing on the later of the consummation of a Business Combination or
one
year from the Effective Date and expiring on the five-year anniversary of
the
Effective Date at an initial exercise price per Representatives’ Unit of $10.00,
which is equal to one hundred and twenty five percent (125%) of the initial
public offering price of a Unit. The Representative’s Purchase Option, the
Representatives’ Units, the Warrants included in the Representatives’ Units (the
“Representative’s
Warrants”)
and
the shares of Common Stock issuable upon exercise of the Representative’s
Warrants are hereinafter referred to collectively as the “Representatives’
Securities.”
The Public Securities and the Representatives’ Securities are hereinafter
referred to collectively as the “Securities.”
The
Representatives understand and agree that there are significant restrictions
against transferring the Representative’s Purchase Option during the first year
after the Effective Date, as set forth in Section 3 of the Representative’s
Purchase Option.
1.3.2
Delivery
and Payment.
Delivery and payment for the Representative’s Purchase Option shall be made on
the Closing Date. The Company shall deliver to Casimir Capital L.P.,
upon
payment therefor, certificates for the Representative’s Purchase Option in the
name or names and in such authorized denominations as Casimir Capital L.P.
may
request.
2.
Representations
and Warranties of the Company.
The Company represents and warrants to the Underwriters as follows:
2.1
Filing
of Registration Statement.
2.1.1
Pursuant
to the Act.
The Company has filed with the Securities and Exchange Commission (“Commission”)
a
registration statement and an amendment or amendments thereto, on Form S-1
(File No. 333-125687), including any related preliminary prospectus (the
“Preliminary
Prospectus”),
for
the registration of the Public Securities under the Securities Act of 1933,
as
amended (“Act”),
which
registration statement and amendment or amendments have been prepared by
the
Company in conformity with the requirements of the Act, and the rules and
regulations (“Regulations”)
of the
Commission under the Act. Except as the context may otherwise require,
such registration statement, as amended, on file with the Commission at the
time
the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as
a
part thereof or incorporated therein and all information deemed to be a part
thereof as of such time pursuant to paragraph (b) of Rule 430A of the
Regulations), is hereinafter called the “Registration
Statement,”
and
the form of the final prospectus dated the Effective Date included in the
Registration Statement (or, if applicable, the form of final prospectus filed
with the Commission pursuant to Rule 424 of the Regulations), is hereinafter
called the “Prospectus.”
The Registration Statement has been declared effective by the Commission
on the
date hereof.
3
2.1.2
Pursuant
to the Exchange Act.
The Company has filed with the Commission a Form 8-A (File Number 000-51553)
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.
2.2
No
Stop Orders, Etc.
Neither the Commission nor, to the best of the Company’s knowledge, any state
regulatory authority has issued any order or threatened to issue any order
preventing or suspending the use of any 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 the Registration Statement became effective and at all times
subsequent thereto up to the Closing Date and the Option Closing Date, if
any,
the Registration Statement and the Prospectus will contain all material
statements that are required to be stated therein in accordance with the
Act and
the Regulations, and will in all material respects conform to the requirements
of the Act and the Regulations and neither the Registration Statement nor
the
Prospectus, nor any amendment or supplement thereto, on such dates, 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
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 Representatives expressly for use in the Registration Statement or
Prospectus or any amendment thereof or supplement thereto.
2.3.2
Disclosure
of Agreements.
The agreements and documents described in the Registration Statement 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 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, and (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 best of the Company’s knowledge, any other party is in
breach or default thereunder and, to the best of the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of notice,
or
both, would constitute a breach or default thereunder. To the best
of the
Company’s knowledge, performance by the Company of the material provisions of
such agreements or instruments will not result in a violation of any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company
or
any of its assets or businesses, including, without limitation, those relating
to environmental laws and regulations.
4
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 within the three years prior to the
date
hereof, 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.
Since the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise specifically stated therein:
(i) there has been no material adverse change in the condition, financial
or
otherwise, or business prospects of the Company; (ii) there have been no
material transactions entered into by the Company, other than as contemplated
pursuant to this Agreement; and (iii) no member of the Company’s management has
resigned from any position with the Company.
2.4.2
Recent
Securities Transactions, Etc.
Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as may otherwise be
indicated or contemplated herein or therein, the Company has not: (i) issued
any
securities or incurred any liability or obligation, direct or contingent,
for
borrowed money; or (ii) declared or paid any dividend or made any
other
distribution on or in respect to its capital stock.
2.5
Independent
Accountants.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“MK”),
whose
report is filed with the Commission as part of the Registration Statement,
are
independent accountants as required by the Act and the Regulations.
MK has
not, during the periods covered by the financial statements included in the
Prospectus, provided to the Company any non-audit services, as such term
is used
in Section 10A(g) of the Exchange Act.
2.6
Financial
Statements.
The financial statements, including the notes thereto and supporting schedules
included in the Registration Statement and Prospectus fairly present the
financial position, the results of operations and cash flows 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,
consistently applied throughout the periods involved; and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. The Registration Statement discloses
all
material off-balance sheet transactions, arrangements, obligations (including
contingent obligations), and other relationships of the Company with
unconsolidated entities or other persons that may have a material current
or
future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital
resources, or significant components of revenues or expenses.
5
2.7
Authorized
Capital; Options, Etc.
The Company had at the date or dates indicated in the Prospectus duly
authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Prospectus. Based on the assumptions
stated
in the Registration Statement 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 and the
Prospectus, on the Effective Date and on the Closing Date, there will be
no
options, warrants, or other rights to purchase or otherwise acquire any
authorized, but unissued 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.
2.8
Valid
Issuance of Securities, Etc.
2.8.1
Outstanding
Securities.
All issued and outstanding securities of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; the holders thereof
have no rights of rescission with respect thereto, and are not subject to
personal liability by reason of being such holders; and none of such securities
were issued in violation of the preemptive rights of any holders of any security
of the Company or similar contractual rights granted by the Company.
The
authorized Common Stock conforms in all material respects to all statements
relating thereto contained in the Registration Statement and the Prospectus.
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, 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 all statements
with respect thereto contained in the Registration Statement. When
issued,
the Representative’s Purchase Option, the Representative’s Warrants and the
Warrants will constitute valid and binding obligations of the Company to
issue
and sell, upon exercise thereof and payment of the respective exercise prices
therefor, the number and type of securities of the Company called for thereby
in
accordance with the terms thereof and such Representative’s Purchase Option, the
Representative’s Warrants and the 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 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.
6
2.9
Registration
Rights of Third Parties.
Except as set forth in 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 2.21
hereof),
the Trust Agreement, the Services Agreement (as defined in Section 3.7.2
hereof) and the Escrow Agreement (as defined in Section 2.22.2 hereof)
have
been duly and validly authorized by the Company and constitute, and the
Representative’s Purchase Option, has been duly and validly authorized by the
Company and, when executed and delivered, will constitute, the valid and
binding
agreements of the Company, enforceable against the Company in accordance
with
their respective terms, except: (i) as such enforceability may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and
(iii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
2.11
No
Conflicts, Etc.
The execution, delivery, and performance by the Company of this Agreement,
the
Warrant Agreement, the Representative’s Purchase Option, the Trust Agreement,
the Service 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 al 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 2.23
hereof;
(ii) result in any violation of the provisions of the 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 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 purpose as described in the
Prospectus. The disclosures in the Registration Statement 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.
7
2.13.2
Transactions
Contemplated Herein.
The Company has all requisite 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 Representative’s Purchase Option, the Trust Agreement, the
Services Agreement and the Escrow Agreement and as contemplated by the
Prospectus, except with respect to applicable federal and state securities
laws.
2.14
D&O
Questionnaires.
To the best of the Company’s knowledge, 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 2.22.1) 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 or the Questionnaires.
2.16
Good
Standing.
The Company has been duly organized and is validly existing as a corporation
and
is in good standing under the laws of its 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.
2.17
Stop
Orders.
The Commission has not issued any order preventing or suspending the use
of any
Preliminary Prospectus or Prospectus or any part thereof.
2.18
Transactions
Affecting Disclosure to NASD.
2.18.1
Finder’s
Fees.
Except as described in 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 best
of the
Company’s knowledge, any Initial Stockholder that may affect the Underwriters’
compensation, as determined by the National Association of Securities Dealers,
Inc. (the “NASD
”).
2.18.2
Payments
Within Twelve Months.
The Company has not made any direct or indirect payments (in cash, securities
or
otherwise): (i) to any person, as a finder’s fee, consulting fee or otherwise,
in consideration of such person raising capital for the Company or introducing
to the Company persons who raised or provided capital to the Company; (ii)
to
any 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 the Representatives.
2.18.3
Use
of
Proceeds.
None of the net proceeds of the Offering will be paid by the Company to any
participating NASD member or its affiliates, except as specifically authorized
herein and except as may be paid in connection with a Business Combination
as
contemplated by the Prospectus.
8
2.18.4
Insiders’
NASD Affiliation.
Based on questionnaires distributed to such persons, other than ▇▇▇▇▇ ▇.
▇▇▇▇▇▇,
no officer, director or any beneficial owner of the Company’s unregistered
securities has any direct or indirect affiliation or association with any
NASD
member. The Company will advise the Representatives and its counsel
if it
learns that any officer, director or owner of at least 5% of the Company’s
outstanding Common Shares is or becomes an affiliate or associated person
of an
NASD member participating in the offering.
2.19
Foreign
Corrupt Practices Act.
Neither the Company, nor to the knowledge of the Company, 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 assets, business
or
operations of the Company as reflected in any of the financial statements
contained in the Prospectus or (iii) if not continued in the future, might
adversely affect the assets, business, operations or prospects of the
Company. The Company’s internal accounting controls and procedures are
sufficient to cause the Company to comply with the Foreign Corrupt Practices
Act
of 1977, as amended.
2.20.
Officers’
Certificate.
Any certificate signed by any duly authorized officer of the Company, in
connection with the Offering, and delivered to you or to your counsel shall
be
deemed a representation and warranty by the Company to the Underwriters as
to
the matters covered thereby.
2.21 Warrant
Agreement.
The Company has entered into a warrant agreement with respect to the Warrants
and the Representative’s Warrants with Continental Stock Transfer & Trust
Company 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.
2.22
Agreements
With Initial Stockholders.
2.22.1
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 10.8, 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
Prospectus.
2.22.2
Escrow
Agreement.
The Company has caused the Initial Stockholders to enter into an escrow
agreement (the “Escrow
Agreement”)
with
Continental Stock Transfer & Trust Company (the “Escrow
Agent”)
substantially in the form annexed as Exhibit 10.10 to the Registration
Statement, whereby the Common Stock owned by each of the Initial Stockholders
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
to
spouses and children of Initial Stockholders and trusts established for their
benefit and as otherwise set forth in the Escrow Agreement), but will retain
the
right to vote such shares and receive any distributions with respect to such
shares. The Escrow Agreement shall not be amended, modified or otherwise
changed without the prior written consent of the Representatives.
9
2.23
Investment
Management Trust Agreement.
The Company has entered into the Trust Agreement with respect to certain
proceeds of the Offering substantially in the form annexed as Exhibit 10.9
to
the Registration Statement.
2.24
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.
2.25
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).
2.26
Subsidiaries.
The Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.27
Related
Party Transactions.
There are no business relationships or related party transactions involving
the
Company or any other person required to be described in the Prospectus that
have
not been described as required.
3.
Covenants
of the Company.
The Company covenants and agrees as follows:
3.1
Amendments
to Registration Statement.
The Company will deliver to the Representatives, prior to filing, any amendment
or supplement to the Registration Statement or Prospectus proposed to be
filed
after the Effective Date and not file any such amendment or supplement to
which
the Representatives shall reasonably object in writing.
3.2
Federal
Securities Laws.
3.2.1
Compliance.
During the time when a Prospectus is required to be delivered under the Act,
the
Company will use all reasonable efforts to comply with all requirements imposed
upon it by the Act, the Regulations and the Exchange Act and by the regulations
under the Exchange Act, as from time to time in force, so far as necessary
to
permit the continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If at any
time
when a Prospectus relating to the Public Securities is required to be delivered
under the Act, any event shall have occurred as a result of which, in the
opinion of counsel for the Company or counsel for the Underwriters, the
Prospectus, as then amended or supplemented, includes an untrue statement
of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under
which they were made, not misleading, or if it is necessary at any time to
amend
the Prospectus to comply with the Act, the Company will notify the
Representatives promptly and prepare and file with the Commission, subject
to
Section 3.1 hereof, an appropriate amendment or supplement in accordance
with Section 10 of the Act.
10
3.2.2
Filing
of Final Prospectus.
The Company will file the Prospectus (in form and substance satisfactory
to the
Representatives) with the Commission pursuant to the requirements of Rule
424 of
the Regulations.
3.2.3
Exchange
Act Registration.
Until the earlier of five years from the Effective Date, or until such earlier
time upon which the Company is required to be liquidated, the Company will
use
its best efforts to maintain the registration of the Units, Common Stock
and
Warrants under the provisions of the Exchange Act and the Company will not
deregister the Units under the Exchange Act without the prior written consent
of
the Representatives.
3.3
Blue
Sky Filings.
The Company will endeavor in good faith, in cooperation with the
Representatives, at or prior to the time the Registration Statement becomes
effective, to qualify the Public Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may reasonably
designate, provided that no such qualification shall be required in any
jurisdiction where, as a result thereof, the Company would be subject to
service
of general process or to taxation as a foreign corporation doing business
in
such jurisdiction. In each jurisdiction where such qualification
shall be
effected, the Company will, unless the Representatives agree that such action
is
not at the time necessary or advisable, use all reasonable efforts to file
and
make such statements or reports at such times as are or may be required by
the
laws of such jurisdiction.
3.4
Delivery
to Underwriters of Prospectuses.
The Company will deliver to each of the several Underwriters, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act such number of copies of each
Preliminary Prospectus and the Prospectus as such Underwriters may reasonably
request and, as soon as the Registration Statement or any amendment or
supplement thereto becomes effective, deliver to you two original executed
Registration Statements, including exhibits, and all post-effective amendments
thereto and copies of all exhibits filed therewith or incorporated therein
by
reference and all original executed consents of certified experts.
3.5
Effectiveness
and Events Requiring Notice to the Representatives.
The Company will use its best efforts to cause the Registration Statement
to
remain effective and will notify the Representatives immediately and confirm
the
notice in writing: (i) of the effectiveness of the Registration Statement
and any amendment thereto; (ii) of the issuance by the Commission of any
stop
order or of the initiation, or the threatening, of any proceeding for that
purpose, when the Company becomes aware of such; (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,
when the Company becomes aware of such; (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, makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or that requires the making
of
any changes in the Registration Statement or the Prospectus in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Commission or any state securities commission
shall
enter a stop order or suspend such qualification at any time, the Company
will
make every reasonable effort to obtain promptly the lifting of such order.
3.6
Review
of Financial Statements.
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, 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.
11
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.
3.7.2
Office
Space and Administrative Services.
The Company has entered into an agreement with Platinum Partners Value
Arbitrage, L.P., a limited partnership owned and managed by an affiliate
of ▇▇▇▇
▇▇▇▇▇▇▇▇▇, the Company’s Chairman of the Board, pursuant to which the Company
will pay such entity approximately $7,500 per month for office space and
other
general and administrative services including secretarial support (the
“Services
Agreements”).
3.7.3
Affiliate
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,
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 in connection with seeking and
consummating a Business Combination.
3.8
Secondary
Market Trading and Standard & Poor’s.
The
Company will apply to be included in Standard & Poor’s Daily News and
Corporation Records Corporate Descriptions for a period ending on the earlier
of
five years from the consummation of a Business Combination, listing of the
Company’s securities on a national securities exchange or the Nasdaq Stock
Market, or such earlier time as the Company is liquidated. Promptly
after the consummation of the Offering, 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. The Company shall also take
such
other action as may be reasonably requested by the Representatives to obtain
a
secondary market trading exemption in such other states as may be requested
by
the Representatives.
3.9
Warrant
Solicitation Fees.
The Company hereby engages Casimir, on a non-exclusive basis, as its agent
for
the solicitation of the exercise of the Warrants. The Company will
(i) assist Casimir with respect to such solicitation, if requested
by
Casimir, and (ii) at Casimir’s request, provide Casimir, and direct the
Company’s transfer and warrant agent to provide to Casimir, 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 Casimir a commission of five percent of the exercise price 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 Casimir solicited
his
exercise. Casimir may engage sub-agents in its solicitation efforts.
The Company agrees to disclose the arrangement to pay such solicitation fees
to
Casimir in any prospectus used by the Company in connection with the
registration of the shares of Common Stock underlying the Warrants.
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, but not affiliated with, the Representatives for
a
term to be agreed upon by the Company and the Representatives.
12
3.11
Reports
to the Representatives.
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 Representatives 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
Representatives: (i) a copy of each periodic report the Company shall be
required to file with the Commission; (ii) a copy of every press release
and
every news item and article with respect to the Company or its affairs
which was released by the Company; (iii) a copy of each Form 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 Representatives may from time to time
reasonably request; provided that the Representatives shall sign, if requested
by the Company, a Regulation FD compliant confidentiality agreement which
is
reasonably acceptable to the Company, the Representatives and their respective
counsel in connection with the Representatives’ receipt of such information.
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 liquidated, the Company shall retain a transfer
and warrant agent acceptable to the Representatives (the “Transfer
Agent”)
and
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. The Underwriters acknowledge that American Stock Transfer
& Trust Company is an acceptable Transfer Agent.
3.11.3
Secondary
Market Trading Survey.
Until such time as the Public Securities are listed or quoted, as the case
may
be, on the New York Stock Exchange, the American Stock Exchange or quoted
on the
NASDAQ National Market, or until such earlier time upon which the Company
is
required to be liquidated, the Company shall engage ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
(“▇▇▇▇▇▇▇
Krooks”),
for a
one-time fee of $5,000 payable on the Closing Date, to deliver and update
to the
Underwriters on a timely basis, but in any event on the Effective Date and
at
the beginning of each fiscal quarter, a written report detailing those states
in
which the Public Securities may be traded in non-issuer transactions under
the
Blue Sky laws of the fifty States (the “Secondary
Market Trading Survey”).
3.11.4
Trading
Reports.
During such time as the Public Securities are quoted on the NASD OTC Bulletin
Board (or any successor trading market such as the Bulletin Board Exchange)
or
the Pink Sheets, LLC (or similar publisher of quotations) and no other automated
quotation system, the Company shall provide to the Representative, at its
expense, such reports published by the NASD or the Pink Sheets, LLC relating
to
price trading of the Public Securities, as the Representatives shall reasonably
request.
3.12
Disqualification
of Form S-1.
For a period equal to seven years from the date hereof, or until such earlier
time upon which the Company is required to be liquidated, the Company will
not
take any action or actions which may prevent or disqualify the Company’s use of
Form S-1 (or other appropriate form) for the registration of the Warrants
and
the Representative’s Warrants under the Act.
13
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 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 and final Prospectuses and the
printing and mailing of this Agreement and related documents, including the
cost
of all copies thereof and any amendments thereof or supplements thereto supplied
to the Underwriters in quantities as may be required by the Underwriters;
(ii)
the printing, engraving, issuance and delivery of the Units, the shares of
Common Stock and the Warrants included in the Units and the Representative’s
Purchase Option, including any transfer or other taxes payable thereon; (iii)
the qualification of the Public Securities under state or foreign securities
or
Blue Sky laws, including the costs of printing and mailing the “Preliminary Blue
Sky Memorandum,” and all amendments and supplements thereto, fees and
disbursements for the Representatives’ counsel retained for such purpose (such
fees shall be capped at $35,000 in the aggregate of which $15,000 has previously
been paid) and a one-time fee of $5,000 payable to the Representative’s counsel
for the preparation of the Secondary Market Trading Survey; (iv) filing
fees, costs and expenses (including fees of Representatives’ counsel and
disbursements for the Representatives’ counsel) incurred in registering the
Offering with the NASD; (v) costs of placing “tombstone” advertisements in
The
Wall Street Journal,
The
New York Timesand
a
third publication to be selected by Casimir; (vi) fees and disbursements
of the
transfer and warrant agent; (vii) the Company’s expenses associated with “due
diligence” meetings arranged by the Representatives; (viii) the preparation,
binding and delivery of transaction “bibles,” in form and style reasonably
satisfactory to the Representatives and transaction lucite cubes or similar
commemorative items in a style and quantity as reasonably requested by the
Representatives; and (ix) all other costs and expenses customarily borne
by an
issuer incident to the performance of its obligations hereunder which are
not
otherwise specifically provided for in this Section 3.13.1.
The
Company also agrees that it will reimburse Representatives for the cost of
the
investigative search firm of the Representatives’ choice that conducted an
investigation of the principals of the Company, which costs are not expected
to
exceed $25,000. The Representatives may deduct from the net proceeds
of
the Offering payable to the Company on the Closing Date, or the Option Closing
Date, if any, the expenses set forth herein to be paid by the Company to
the
Representatives and others. If the Offering contemplated by this
Agreement
is not consummated for any reason whatsoever, 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 Representatives in full for its out of pocket accountable expenses actually
incurred by the Representatives, including, without limitation, its legal
fees
(up to a maximum of $50,000).
3.13.2
Nonaccountable
Expenses.
The Company further agrees that, in addition to the expenses payable pursuant
to
Section 3.13.1, on each of the Closing Date, it will pay to the
Representatives a nonaccountable expense allowance equal to one percent (1%)
of
the gross proceeds received by the Company from the sale of the Firm Units
by
deduction from the proceeds of the Offering contemplated herein.
3.14
Application
of Net Proceeds.
The Company will apply the net proceeds from the 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.
14
3.16
Notice
to NASD.
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 Representatives 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.
3.17
Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors
or
stockholders (without the consent of the Representatives) has taken or will
take, directly or indirectly, any action designed to or that has constituted
or
that might reasonably be expected to cause or result in, under the Exchange
Act,
or otherwise, stabilization or manipulation of the price of any security
of the
Company to facilitate the sale or resale of the 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
MK
or other independent public accountants reasonably acceptable to the
Representatives.
3.20
Form
8-K.
The Company shall, on the date hereof, retain its independent public accountants
to audit the financial statements of the Company as of the Closing Date (the
“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the initial public
offering. As soon as the Audited Financial Statements become available,
the Company shall immediately file a Current Report on Form 8-K with
the
Commission, which Report shall contain the Company’s Audited Financial
Statements.
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 Company’s Public 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 as set forth in the Trust Agreement and as more fully 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.
15
3.24
No
Fiduciary Duty.
The
Company acknowledges and agrees that (i) the purchase and sale of
the Units
pursuant to this Agreement is an arm's-length commercial transaction between
the
Company, on the one hand, and the several Underwriters, on the other,
(ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the
agent
or fiduciary of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) the Company has consulted its own
legal
and financial advisors to the extent it deemed appropriate. The Company agrees
that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar
duty
to the Company, in connection with such transaction or the process leading
thereto.
3.25
Colorado
Trust Filing.
In the
event the Securities are registered in the State of Colorado, the Company
will
cause a Colorado Form ES to be filed with the Commissioner of the State of
Colorado no less than 10 days prior to the distribution of the Trust Fund
in
connection with a Business Combination and will do all things necessary to
comply with Section ▇▇-▇▇-▇▇▇ and Rule 51-3.4 of the Colorado Securities
Act.
4. Conditions
of 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:
4.1
Regulatory
Matters.
4.1.1
Effectiveness
of Registration Statement.
The Registration Statement shall have become effective not later than 5:00
P.M.,
New York time, on the date of this Agreement or such later date and time
as
shall be consented to in writing by you, and, at each of the Closing Date
and
the Option Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for the
purpose
shall have been instituted or shall be pending or contemplated by the Commission
and any request on the part of the Commission for additional information
shall
have been complied with to the reasonable satisfaction of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
4.1.2
NASD
Clearance.
By the Effective Date, the Representatives 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
Blue Sky Stop Orders.
No order suspending the sale of the Units in any jurisdiction designated
by you
pursuant to Section 3.3 hereof shall have been issued on either on
the
Closing Date or the Option Closing Date, and no proceedings for that purpose
shall have been instituted or shall be contemplated.
16
4.2
Company
Counsel Matters.
4.2.1
Effective
Date Opinion of Counsel.
On the Effective Date, the Representatives shall have received the favorable
opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C. (“Mintz
▇▇▇▇▇”),
counsel to the Company, dated the Effective Date, addressed to the
Representatives and in form and substance satisfactory to the Representatives
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. 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.
(ii) All
issued and outstanding securities of the Company 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 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 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 under the Delaware General
Corporation Law or under the Certificate of Incorporation or Bylaws of the
Company. When issued, the Representative’s Purchase Option, the
Representative’s Warrants and the Warrants will constitute valid and binding
obligations of the Company to issue and sell, upon exercise thereof and payment
therefor, the number and type of securities of the Company called for thereby
and such Warrants, the Representative’s Purchase Option, and the
Representative’s Warrants, when issued, in each case, are enforceable against
the Company in accordance with their respective terms, except: (a) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (b) as enforceability of any
indemnification or contribution provision may be limited under the federal
and
state securities laws; and (c) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. The certificates representing the Securities are
in due
and proper form.
(iv) This
Agreement, the Warrant Agreement, the Services Agreements, the Trust Agreement
and the Escrow Agreement have each been duly and validly authorized and,
when
executed and delivered by the Company, constitute, and the Representative’s
Purchase Option has been duly and validly authorized by the Company and,
when
executed and delivered, will constitute, the valid and binding obligations
of
the Company, enforceable against the Company in accordance with their respective
terms, except: (a) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (b) as enforceability of any indemnification or contribution
provisions may be limited under the federal and state securities laws; and
(c)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
17
(v) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
the Representative’s Purchase Option, the Escrow Agreement, the Trust Agreement
and the Services Agreements, the issuance and sale of the Securities, 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 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.
(vi) The
Registration Statement, each Preliminary Prospectus and the Prospectus and
any
post-effective amendments or supplements thereto (other than the financial
statements included therein, as to which no opinion need be rendered) each
as of
their respective dates 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
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).
(vii) The
opinion of counsel shall further include a statement to the effect that counsel
has participated in conferences with officers and other representatives of
the
Company, representatives of the independent public accountants for the Company
and representatives of the Underwriters at which the contents of the
Registration Statement, the Prospectus and related matters were discussed
and
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in
the
Registration Statement and Prospectus (except as otherwise set forth in this
opinion), no facts have come to the attention of such counsel which should
lead
them to believe that either the Registration Statement or the Prospectus
or any
amendment or supplement thereto, as of the date of such opinion 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 or Prospectus).
(viii) 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.
(ix) 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.
18
4.2.2 Intentionally
Left Blank.
4.2.3
Closing
Date and Option Closing Date Opinion of Counsel.
On each of the Closing Date and the Option Closing Date, if any, the
Representatives shall have received the favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇,
dated
the Closing Date or the Option Closing Date, as the case may be set forth
above,
addressed to the Representatives and in form and substance reasonably
satisfactory to the Representatives, confirming as of the Closing Date and,
if
applicable, the Option Closing Date, the statements made by ▇▇▇▇▇ ▇▇▇▇▇ in
its
opinion delivered on the Effective Date.
4.2.4
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
Representatives) of other counsel reasonably acceptable to the Representatives,
familiar with the applicable laws; and (ii) as to matters of fact,
to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdictions having
custody of documents respecting the corporate existence or good standing
of the
Company, provided that copies of any such statements or certificates shall
be
delivered to the Underwriters’ counsel if requested. The opinion of
counsel for the Company and any opinion relied upon by such counsel for the
Company shall include a statement to the effect that it may be relied upon
by
counsel for the Underwriters in its opinion delivered to the Underwriters.
4.3
Cold
Comfort Letter.
At the time this Agreement is executed, and at each of the Closing Date and
the
Option Closing Date, if any, you shall have received a letter, addressed
to the
Representatives and in form and substance satisfactory in all respects
(including the non-material nature of the changes or decreases, if any, referred
to in clause (iii) below) to you and to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ from MK 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 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 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 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; (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 June 30, 2005 balance sheet included in
the
Registration Statement, other than as set forth in or contemplated by the
Registration Statement, or, if there was any decrease, setting forth the
amount
of such decrease, and (c) during the period from June 30, 2005 to a specified
date not later than five days prior to the Effective Date, Closing Date or
Option Closing Date, as the case may be, there was any decrease in revenues,
net
earnings or net earnings per 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, or, if there was any such decrease,
setting forth the amount of such decrease;
19
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company (including a break-down of commercial
papers and notes payable to banks);
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the 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) Statements
as to such other matters incident to the transaction contemplated hereby
as you
may reasonably request.
4.4
Officers’
Certificates.
4.4.1
Officers’
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representatives shall have received a certificate of the Company signed by
the
Chairman of the Board or the President and the Secretary or Assistant Secretary
of the Company, dated the Closing Date or the Option Closing Date, as the
case
may be, respectively, to the effect that the Company has performed all covenants
and complied with all conditions required by this Agreement to be performed
or
complied with by the Company prior to and as of the Closing Date, or the
Option
Closing Date, as the case may be, and that the conditions set forth in
Section 4.5 hereof have been satisfied as of such date and that, as
of
Closing Date and the Option Closing Date, as the case may be, the
representations and warranties of the Company set forth in Section 2
hereof
are true and correct. In addition, the Representatives will have
received
such other and further certificates of officers of the Company as the
Representatives may reasonably request.
4.4.2
Secretary’s
Certificate.
At each of the Closing Date and the Option Closing Date, if any, the
Representatives shall have received a certificate of the Company signed by
the
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 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.
20
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
and
Prospectus; (ii) no action suit or proceeding, at law or in equity, shall
have
been pending or, to the knowledge of the Company, 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 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
and the Prospectus and any amendments or supplements thereto shall contain
all
material statements which are required to be stated therein in accordance
with
the Act and the Regulations and shall conform in all material respects to
the
requirements of the Act and the Regulations, and neither the Registration
Statement nor the Prospectus nor any amendment or supplement thereto shall
contain any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
4.6
Delivery
of Agreements.
4.6.1
Effective
Date Deliveries.
On the Effective Date, the Company shall have delivered to the Representatives
executed copies of the Escrow Agreement, the Trust Agreement, the Warrant
Agreement, the Services Agreement and all of the Insider Letters.
4.6.2
Closing
Date Deliveries.
On the Closing Date, the Company shall have delivered to Casimir Capital
L.P.
executed copies of the Representative’s Purchase Option.
4.7
Opinion
of Counsel for the Underwriters.
All proceedings taken in connection with the authorization, issuance or sale
of
the Securities as herein contemplated shall be reasonably satisfactory in
form
and substance to you and to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and you shall have received from
such
counsel a favorable opinion, dated the Closing Date and the Option Closing
Date,
if any, with respect to such of these proceedings as you may reasonably
require. On or prior to the Effective Date, the Closing Date and
the
Option Closing Date, as the case may be, counsel for the Underwriters shall
have
been furnished such documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 4.7, or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions herein contained.
4.8
Secondary
Market Trading Survey.
On the Closing Date, the Representative shall have received the Secondary
Market
Trading Survey from ▇▇▇▇▇▇▇ Krooks.
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 you 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 statute or at
common
law or otherwise or under the laws of foreign countries, arising out of or
based
upon any untrue statement or alleged untrue statement of a material fact
contained in (i) any Preliminary Prospectus, the Registration Statement 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 in which is included securities of the Company issued or issuable
upon exercise of the Representative’s Purchase Option; 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, 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 or Prospectus,
or any
amendment or supplement thereof, or in any application, as the case may
be. With respect to any untrue statement or omission or alleged untrue
statement or omission made in the Preliminary Prospectus, the indemnity
agreement contained in this paragraph shall not inure to the benefit of any
Underwriter to the extent that any loss, liability, claim, damage or expense
of
such Underwriter results from the fact that a copy of the Prospectus was
not
given or sent to the person asserting any such loss, liability, claim or
damage
at or prior to the written confirmation of sale of the Securities to such
person
as required by the Act and the Regulations, and if the untrue statement or
omission has been corrected in the Prospectus, unless such failure to deliver
the Prospectus was a result of non-compliance by the Company with its
obligations under Section 3.4 hereof. The Company agrees promptly
to
notify the Representatives of the commencement of any litigation or proceedings
against the Company or any of its officers, directors or controlling persons
in
connection with the issue and sale of the Securities or in connection with
the
Registration Statement or Prospectus.
21
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 reasonable 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, agents and each
other person who controls the Company within the meaning of Section 15
of
the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the foregoing indemnity
from
the Company to the several Underwriters, as incurred, but only with respect
to
untrue statements or omissions, or alleged untrue statements or omissions
made
in any Preliminary Prospectus, the Registration Statement or Prospectus or
any
amendment or supplement thereto or in any application, in reliance upon,
and in
strict conformity with, written information furnished to the Company with
respect to such Underwriter by or on behalf of the Underwriter expressly
for use
in such Preliminary Prospectus, the Registration Statement or Prospectus
or any
amendment or supplement thereto or in any such application. In case
any
action shall be brought against the Company or any other person so indemnified
based on any Preliminary Prospectus, the Registration Statement or Prospectus
or
any amendment or supplement thereto or any application, and in respect of
which
indemnity may be sought against any Underwriter, such Underwriter shall have
the
rights and duties given to the Company, and the Company and each other person
so
indemnified shall have the rights and duties given to the several Underwriters
by the provisions of Section 5.1.2.
22
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.
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.
23
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.
6.2
Default
Exceeding 10% of Firm Units or Option Units.
In the event that the default addressed in Section 6.1 above relates to more
than 10% of the Firm Units or Option Units, you may in your discretion arrange
for yourself or for another party or parties to purchase such Firm Units
or
Option Units to which such default relates on the terms contained herein.
If within one business day after such default relating to more than 10% of
the
Firm Units or Option Units you do not arrange for the purchase of such Firm
Units or Option Units, then the Company shall be entitled to a further period
of
one business day within which to procure another party or parties satisfactory
to you to purchase said Firm Units or Option Units on such terms.
In the
event that neither you nor the Company arrange for the purchase of the Firm
Units or Option Units to which a default relates as provided in this
Section 6, this Agreement will be terminated by you or the Company
without
liability on the part of the Company (except as provided in Sections 3.15
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, you or the Company shall have the
right to postpone the Closing Date or Option Closing Date for a reasonable
period, but not in any event exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement
or
the Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment to the Registration Statement or the
Prospectus that in the opinion of counsel for the Underwriters may thereby
be
made necessary. The term “Underwriter” as used in this Agreement shall include
any party substituted under this Section 6 with like effect as if
it had
originally been a party to this Agreement with respect to such Securities.
7.
Right
to Appoint Observer.
For a period of two years from the Effective Date, upon notice from the
Representatives to the Company, the Representatives shall have the right
to send
one representative (who need not be the same individual from meeting to meeting)
to observe each meeting of the Board of Directors of the Company; provided
that
such representative shall sign a Regulation FD compliant confidentiality
agreement, inclusive of the prohibitions on ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as provided by
the
federal and state securities laws, which is reasonably acceptable to the
representatives, the Company and their counsel in connection with such
Representatives’ attendance at meetings of the Board of Directors; and provided
further that upon written notice to the representatives, the Company may
exclude
the representative from meetings where, in the written opinion of counsel
for
the Company, the Representatives’ presence would destroy the attorney-client
privilege. The Company agrees to give the representative written
notice of
each such meeting and to provide the representative with an agenda and minutes
of the meeting no later than it gives such notice and provides such items
to the
other directors, and reimburse the representative of the representatives
for its
reasonable out-of-pocket expenses incurred in connection with its attendance
at
the meeting, including but not limited to, food, lodging and transportation.
24
8.
Additional
Covenants.
8.1
Intentionally
Omitted.
8.2
Additional
Shares or Options.
The Company hereby agrees that until the Company consummates a Business
Combination (as such term is defined in the Registration Statement), 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.
8.3
Trust
Fund Waiver Letters.
The Company hereby agrees that it will not commence its due diligence
investigation of any operating business which the Company seeks to acquire
(“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 $95,160,000 (without giving effect to any
exercise of the Over-allotment Option) for the benefit of the Public
Stockholders and that the Company may disburse monies from the Trust Fund
only
(i) to the Public Stockholders in the event they elect to convert their IPO
Shares (as defined below in Section 8.8) 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 in 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
Exhibit
B,
respectively. Furthermore, each officer and director of the Company
shall
execute a waiver letter in the form attached hereto as Exhibit C.
8.4
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 Casimir and will not allow any amendments to, or waivers
of,
such Insider Letters without the prior written consent of the Representatives.
8.5
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 Certificate of
Incorporation or By-Laws. Prior to the consummation of a Business
Combination, the Company will not amend its Certificate of Incorporation
without
the prior written consent of the Representatives.
8.6
Blue
Sky Requirements.
The Company shall provide counsel to the Representatives with ten copies
of all
proxy information and all related material filed with the Commission in
connection with a Business Combination concurrently with such filing with
the
Commission. In addition, the Company shall furnish any other state
in
which its initial public offering was registered, such information as may
be
requested by such state.
25
8.7
Intentionally
Omitted.
8.8
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 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.” 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 in accordance with the vote of the holders of a majority
of the
IPO Shares present, in person or by proxy, at a meeting of the Company’s
stockholders called for such purpose. At the time the Company seeks
approval of any potential Business Combination, the Company will offer each
holder 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 amount
in
the Trust Fund (inclusive of any interest income therein) on the record date
(the “Conversion
Price”)
for
determination of stockholders entitled to vote upon the proposal to approve
such
Business Combination (the “Record
Date”)
divided by the total number of IPO Shares. The Company’s “Liquidation
Value” shall mean the Company’s book value, as determined by the Company and
audited by MK. In no event, however, will the Company’s Liquidation Value be
less than the Trust Fund, inclusive of any net interest income thereon.
If
holders of less than 20% in interest of the Company’s IPO Shares elect to
convert their IPO Shares, 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. 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. If holders of 20% or more in interest of the IPO Shares,
who vote
against approval of any potential Business Combination, elect to convert
their
IPO Shares, the Company will not proceed with such Business Combination and
will
not convert such shares.
8.9
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.
8.10
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.
8.11
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 fair market value 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.
26
9.
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 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.
10.
Effective
Date of This Agreement and Termination Thereof.
10.1
Effective
Date.
This Agreement shall become effective on the Effective Date at the time the
Registration Statement is declared effective by the Commission.
10.2
Termination.
You shall have the right to terminate this Agreement at any time prior to
any
Closing Date, (i) if any domestic or international event or act or occurrence
has materially disrupted, or in your opinion will in the immediate future
materially disrupt, general securities markets in the United States; or (ii)
if
trading on the New York Stock Exchange, the American Stock Exchange, the
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 new war or an increase in major hostilities, or (iv) if a banking
moratorium has been declared by a New York State or federal authority, or
(v) if
a moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities market, or (vi) if the Company
shall have sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether
or
not such loss shall have been insured, will, in your opinion, make it
inadvisable to proceed with the delivery of the Units, or (vii) if any of
the
Company’s representations, warranties or covenants hereunder are breached, or
(viii) if the Representatives shall have become aware after the date hereof
of
such a material adverse change in the conditions or prospects of the Company,
or
such adverse material change in general market conditions, including, without
limitation, as a result of terrorist activities after the date hereof, as
in the
Representatives’ judgment would make it impracticable to proceed with the
offering, sale and/or delivery of the Units or to enforce contracts made
by the
Underwriters for the sale of the Units.
10.3
Expenses.
In the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the obligations of the Company to pay the out of pocket
expenses related to the transactions contemplated herein shall be governed
by
Section 3.13 hereof.
27
10.4
Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall
not
be in any way effected by, such election or termination or failure to carry
out
the terms of this Agreement or any part hereof.
11.
Miscellaneous.
11.1
Notices.
All communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered or telecopied and confirmed
and shall be deemed given when so delivered or telecopied and confirmed or
if
mailed, two days after such mailing
If
to the
Representatives:
Casimir
Capital, L.P.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇, CEO
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Co.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇, Global Head of Investment Banking
Copy
to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, Esq.
If
to the
Company:
Platinum
Energy Resources, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman of the Board
Copy
to:
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
11.2
Headings.
The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
28
11.3
Amendment.
This Agreement may only be amended by a written instrument executed by each
of
the parties hereto.
11.4
Entire
Agreement.
This Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof
and
thereof, and supersede all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
11.5
Binding
Effect.
This Agreement shall inure solely to the benefit of and shall be binding
upon
the Representatives, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or
claim
under or in respect of or by virtue of this Agreement or any provisions herein
contained.
11.6
Governing
Law.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to conflict
of
laws. The Company hereby agrees that any action, proceeding or claim
against it arising out of, relating in any way to this Agreement shall be
brought and enforced in the courts of the State of New York of the United
States
of America for the Southern District of New York, and irrevocably submits
to
such jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that such
courts
represent an inconvenient forum. Any such process or summons to be
served
upon the Company may be served by transmitting a copy thereof by registered
or
certified mail, return receipt requested, postage prepaid, addressed to it
at
the address set forth in Section 10 hereof. Such mailing shall
be
deemed personal service and shall be legal and binding upon the Company in
any
action, proceeding or claim. The Company agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefor.
11.7
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.
11.8
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
29
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, | |||
| PLATINUM ENERGY RESOURCES, INC. | |||
| By: | |||
|
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chairman |
|||
| CASIMIR CAPITAL L.P. | |||
| By: | |||
|
▇▇▇▇▇▇▇ ▇▇▇▇▇ Chief Executive Officer |
|||
| CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO. | |||
| By: | |||
|
▇▇▇▇ ▇▇▇▇▇▇ Global Head of Investment Banking |
30
PLATINUM
ENERGY RESOURCES, INC.
14,400,000
Units
| Underwriter |
Number
of Firm
Units
to be
Purchased
|
| Casimir Capital, ▇.▇. |
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Co.
|
|
|
Total
|
14,400,000 |
31
EXHIBIT
A
Platinum
Energy Resources, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
Gentlemen:
Reference
is made to the Final Prospectus of Platinum Energy Resources, Inc. (“Platinum”),
dated ,
2005 (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 Platinum has established the Trust
Fund,
initially in an amount of $105,408,000 the benefit of the Public Stockholders
and that Platinum 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 Platinum or (ii) to Platinum after it consummates a Business Combination.
For
and
in consideration of Platinum 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 (the “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with Platinum and will not
seek
recourse against the Trust Fund for any reason whatsoever.
|
Print
Name of Target Business
|
||
|
Authorized
Signature of Target Business
|
32
EXHIBIT
B
Platinum
Energy Resources, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
Gentlemen:
Reference
is made to the Final Prospectus of Platinum Energy Resources, Inc. (“Platinum”),
dated ,
2005
(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 Platinum has established the Trust
Fund,
initially in an amount of $105,408,000 for the benefit of the Public
Stockholders and that Mineral 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 Platinum; or (ii) to Platinum after it consummates a Business
Combination.
For
and
in consideration of Platinum engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Fund (the “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 Platinum and will not seek recourse
against
the Trust Fund for any reason whatsoever.
|
Print
Name of Vendor
|
||
|
Authorized
Signature of Lender
|
33
EXHIBIT
C
Platinum
Energy Resources, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
Gentlemen:
The
undersigned officer or director of Platinum Energy resources, Inc. (“Platinum”)
hereby acknowledges that Platinum has established the Trust Fund, initially
in
an amount of $105,408,000 for the benefit of the Public Stockholders and
that
Platinum 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 Platinum or (ii) to Platinum 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 (the “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 Platinum 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 |
34