TREMISIS ENERGY ACQUISITION CORPORATION II (a Delaware corporation) 9,500,000 Units PURCHASE AGREEMENT
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
Delaware corporation)
9,500,000
Units
Dated:
l,
2007
TREMISIS
ENERGY ACQUISITION CORPORATION II
(a
Delaware corporation)
9,500,000
Units
l,
2007
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as
Representative of the several Underwriters
4
World
Financial Center
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Tremisis
Energy Acquisition Corporation II, a Delaware corporation (the “Company”),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided
in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in
such capacity, the “Representative”), with respect to (i) the sale by the
Company, and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of units of the Company (“Units”) set forth in
Schedule A hereto and (ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 1,425,000 additional Units to cover
overallotments, if any. Each Unit consists of one share of common stock, par
value $.0001 per share, of the Company (“Common Stock”) and one warrant of the
Company (“Warrant”). Each Warrant entitles its holder to purchase one share of
Common Stock for an exercise price of $5.00 beginning on the later of six months
after the completion of a Business Combination (as defined below) and
l,
2008,
and will expire on l,
2012,
or earlier upon redemption. “Business Combination” means the acquisition through
a merger, capital stock exchange, stock purchase, asset acquisition or other
similar business combination by the Company of an operating business. The
aforesaid 9,500,000 Units (the “Initial Securities”) to be purchased by the
Underwriters and all or any part of the 1,425,000 Units subject to the option
described in Section 2(b) hereof (the “Option Securities”) are hereinafter
called, collectively, the “Securities.”
The
Company has offered to sell an aggregate of 2,300,000 Warrants to ▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Private
Placement”) pursuant to subscription agreements with each of such purchasers
(the “Subscription Agreements”), which sales will be consummated simultaneously
with the consummation of the offering of the Securities. The Company has entered
into an Investment Management Trust Agreement (the “Trust Agreement”) with
Continental Stock Transfer & Trust Company, dated as of the date hereof,
pursuant to which $72,185,000, or up to $83,129,000 if the 1,425,000 Option
Securities are purchased by the Underwriters, of the proceeds received by the
Company for the Securities, including $2,130,000 (or up to $2,622,000 if all
of
the Option Securities are purchased by the Underwriters), or approximately
$0.22 per Unit, of underwriting discounts and commissions payable to the
Underwriters which are being deferred by them until the Company consummates
a
Business Combination, will be deposited in a trust account for the benefit
of
holders (the “Trust Account”) of any of the Units, shares of Common Stock or
Warrants offered to the public pursuant to this Agreement and the Subscription
Agreements.
The
Company understands that the Underwriters propose to make a public offering
of
the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
1
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (No. 333-145625), including the
related preliminary prospectus or prospectuses, covering the registration of
the
Securities under the Securities Act of 1933, as amended (the “1933 Act”).
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
(“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act
(the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of
the 1933 Act Regulations. The information included in such prospectus that
was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A
Information.” Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information, that
was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a “preliminary prospectus.” Such registration
statement, including the amendments thereto, the exhibits and any schedules
thereto, at the time it became effective, and including the Rule 430A
Information, is herein called the “Registration Statement.” Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the “Rule 462(b) Registration Statement,” and after such filing
the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities is herein called
the
“Prospectus.” For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“▇▇▇▇▇”).
SECTION
1. Representations
and Warranties.
(a) Representations
and Warranties by the Company.
The
Company represents and warrants to each Underwriter as of the date hereof,
the
Applicable Time referred to in Section 1(a)(i) hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance
with Registration Requirements.
Each of
the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act and
no
stop order suspending the effectiveness of the Registration Statement, any
Rule
462(b) Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At
the
respective times that each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are purchased,
at each Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied
and
will comply in all material respects with the requirements of the 1933 Act
and
the 1933 Act Regulations and did not and will not contain an untrue statement
of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the Prospectus
or any such amendment or supplement was issued and at the Closing Time (and,
if
any Option Securities are purchased, at each Date of Delivery), included or
will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
2
As
of the
Applicable Time (as defined below), the Statutory Prospectus (as defined below)
did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means l:00
[a/p]m (Eastern time) on l,
2007 or
such other time as agreed by the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
“Statutory
Prospectus” as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that time.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use
therein.
Each
preliminary prospectus (including the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto)
complied when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
At
the
time of filing the Registration Statement and as of the date hereof, the Company
was and is an “ineligible issuer,” as defined in Rule 405 of the 1933 Act
Regulations. The Company has not made and will not make any offer relating
to
the Securities that would constitute an “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405 of the 1933 Act
Regulations.
The
Company has filed with the Commission a Form 8-A (File Number 000-l)
providing for the registration under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), of the Units, the Common Stock and the Warrants. The
registration of the Units, Common Stock and Warrants under the 1934 Act has
been
declared effective by the Commission on the date hereof.
(ii) Independent
Accountants.
The
accountants who certified the financial statements and supporting schedules
included in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
3
(iii) Financial
Statements.
The
financial statements included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, present fairly in
accordance with GAAP the information required to be stated therein. The summary
financial data included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(iv) No
Material Adverse Change in Business.
Since
the respective dates as of which information is given in the Registration
Statement or the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or otherwise,
or
in the earnings, business affairs or business prospects of the Company, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”),
(B) there have been no transactions entered into by the Company, other than
those in the ordinary course of business, which are material with respect to
the
Company, (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, (D)
no
director or officer of the Company has resigned from any position with the
Company and (E) the Company has not incurred any liability or obligation, direct
or contingent, for borrowed money.
(v) Good
Standing of the Company.
The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in
which
such qualification is required, whether by reason of the ownership or leasing
of
property or the conduct of business, except where the failure so to qualify
or
to be in good standing would not result in a Material Adverse
Effect.
(vi) Subsidiaries.
The
Company has no subsidiaries, and does not own any interest in any corporation,
partnership, limited liability company, joint venture, trust or other business
entity.
(vii) Capitalization.
The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectus in the column entitled “Actual” under the caption
“Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement and pursuant to the Subscription Agreements as described in the
Prospectus). The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company. No securities of the Company have been sold
or
issued by the Company or by or on behalf of, or for the benefit of, any person
or persons controlling, controlled by, or under common control with the Company
since the Company’s formation, except as disclosed in the Registration
Statement.
(viii) Authorization
of Agreement.
This
Agreement has been duly authorized, executed and delivered by the
Company.
4
(ix) Validity
of Agreements.
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, (ii) that is filed
as an
exhibit to the Registration Statement or (iii) that is material to the Company’s
business, has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery of the other parties thereto,
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its 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.
(x) Authorization
and Description of Securities.
The
Securities to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable; each of the Units, the Common Stock and the Warrants
conforms to all statements relating thereto contained in the Prospectus and
such
description conforms to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the Company.
The Common Stock included in the Securities has been duly authorized and, when
issued and paid for by the Underwriters pursuant to this Agreement, will be
validly issued, fully paid and nonassessable. The shares of Common Stock
issuable upon exercise of the Warrants have been duly authorized and reserved
for issuance and, when issued and paid for pursuant to the Warrants, will be
validly issued, fully paid and nonassessable. The execution, delivery and
performance of the Warrants have been duly authorized by all necessary corporate
action on the part of the Company. The Warrants have been duly executed and
delivered by the Company. When issued, the Warrants will constitute valid and
binding obligations of the Company to issue and sell, upon exercise thereof
and
payment of the exercise price therefor, the number and type of securities of
the
Company called for thereby in accordance with the terms thereof and such
Warrants are enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification or contribution
provision may be limited under 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.
(xi) Insider
Securities.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(collectively, the “Insider Purchasers”) have committed to purchase in the
Private Placement from the Company an aggregate of 2,300,000 Warrants (“Insider
Warrants” and, together with the shares of Common Stock underlying the Insider
Warrants, the “Insider Securities”) at $1.00 per Warrant (for an aggregate
purchase price of $2,300,000) at the Closing Time. The Insider Securities have
been duly authorized for issuance and sale to the Insider Purchasers pursuant
to
the Subscription Agreements and, when issued and paid for in accordance with
the
Subscription Agreements entered into by the Insider Purchasers to purchase
such
Insider Securities, will be validly issued, fully paid and non-assessable;
the
holders thereof are not and will not be subject to personal liability by reason
of being such holders; the Insider Securities are not and will not be subject
to
the preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company; and all corporate action required
to
be taken for the authorization, issuance and sale of the Insider Securities
has
been duly and validly taken. All of the proceeds received by the Company
pursuant to the sale of the Insider Securities will be placed in the Trust
Account. The Insider Warrants will be identical to the Warrants underlying
the
Securities except that if the Company calls the Warrants for redemption, the
Insider Warrants will be exercisable on a cashless basis so long as they are
still held by the Insider Purchasers or their affiliates. The Insider Purchasers
have agreed that the Insider Warrants will not be sold or transferred by them
until after the completion of a Business Combination. The Insider Warrants
have
been duly executed and delivered by the Company. The Insider Warrants, when
issued and paid for by the Insider Purchasers pursuant to the Subscription
Agreements, will constitute valid and binding agreements 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 will be enforceable against
the
Company in accordance with their terms.
5
(xii) Absence
of Defaults and Conflicts.
The
Company is not in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company
is
a party or by which it may be bound, or to which any of the property or assets
of the Company is subject (collectively, “Agreements and Instruments”) except
for such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities, the sale of the Insider
Securities in the Private Placement, and the use of the proceeds from the sale
of the Securities and the sale of the Insider Securities as described in the
Prospectus under the caption “Use of Proceeds”), and compliance by the Company
with its obligations hereunder and with its obligations under the Subscription
Agreements have been duly authorized by all necessary corporate action and
do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to, the Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its assets, properties or operations.
As
used herein, a “Repayment Event” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company.
(xiii) Absence
of Labor Dispute.
No
labor dispute with the employees of the Company exists or, to the knowledge
of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers, customers or contractors, which, in either case, would result
in
a Material Adverse Effect.
(xiv) Absence
of Proceedings.
There
is no action, suit, proceeding, inquiry or investigation before or brought
by
any court or governmental agency or body, domestic or foreign, now pending,
or,
to the knowledge of the Company, threatened, against or affecting the
Company.
6
(xv) Accuracy
of Exhibits.
There
are no contracts or documents which are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits thereto
which have not been so described and filed as required. The agreements and
documents described in the Registration Statement and the Prospectus conform
to
the descriptions thereof contained therein.
(xvi) Possession
of Intellectual Property.
The
Company owns or possesses, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or
other intellectual property (collectively, “Intellectual Property”) necessary to
carry on the business now operated by it, and the Company has not received
any
notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts
or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvii) Absence
of Further Requirements.
No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be required
under
the 1933 Act or the 1933 Act Regulations or state securities laws.
(xviii) Absence
of Manipulation.
Neither
the Company nor any affiliate of the Company has taken, nor will the Company
or
any affiliate take, directly or indirectly, any action which is designed to
or
which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xix) Possession
of Licenses and Permits.
The
Company possesses such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by it, except where the failure so to possess
would not, singly or in the aggregate, result in a Material Adverse Effect;
the
Company is in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full
force and effect would not, singly or in the aggregate, result in a Material
Adverse Effect; and the Company has not received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xx) Title
to Property.
The
Company has good and marketable title to all real property owned by the Company
and good title to all other properties owned by it, in each case, free and
clear
of all mortgages, pledges, liens, security interests, claims, restrictions
or
encumbrances of any kind except such as (a) are described in the Prospectus
or
(b) do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such
property by the Company; and all of the leases and subleases material to the
business of the Company and under which the Company holds properties described
in the Prospectus, are in full force and effect, and the Company does not have
any notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company to the
continued possession of the leased or subleased premises under any such lease
or
sublease.
7
(xxi) Investment
Company Act.
The
Company is not required, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as an “investment
company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
The Company has been advised concerning the 1940 Act and the rules and
regulations thereunder and has in the past conducted, and intends in the future
to conduct, its affairs in such a manner as to ensure that it will not become
an
“investment company” or a company “controlled” by an “investment company” within
the meaning of the 1940 Act and such rules and regulations. No more than 45%
of
the “value” (as defined in Section 2(a)(41) of the ▇▇▇▇ ▇▇▇) of the Company’s
total assets (exclusive of cash items and “Government Securities” (as defined in
Section 2(a)(16) of the ▇▇▇▇ ▇▇▇) consist of, and no more than 45% of the
Company’s net income after taxes is derived from, securities other than the
Government Securities.
(xxii) Insider
Letters.
The
Company has caused to be duly executed legally binding and enforceable letter
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)
filed as Exhibits 10.1 through 10.4 and 10.10 to the Registration Statement
(the
“Insider Letters”), pursuant to which each of the initial stockholders of the
Company who own shares of Common Stock immediately prior to the consummation
of
the offering pursuant to this Agreement (the “Initial Stockholders”) 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.
(xxiii) D&O
Questionnaires.
To the
best of the Company’s knowledge, all information contained in the questionnaires
(the “Questionnaires”) completed by each of the Initial Stockholders and
provided to the Underwriters as an exhibit to the respective Insider Letter
is
true and correct and the Company has not become aware of any information which
would cause the information disclosed in the Questionnaires to become inaccurate
and incorrect.
(xxiv) Absence
of Non-competition Agreements.
Except
as described in the Registration Statement, no Initial Stockholder or employee,
officer or director of the Company is subject to any non-competition or
non-solicitation agreement with any employer or prior employer which could
materially affect his ability to be an Initial Stockholder or employee, officer
and/or director of the Company.
(xxv) No
Contemplation of a Business Combination.
Prior
to the date hereof, none of the Company, its officers and directors, the Initial
Stockholders or any of their respective Affiliates had and, as of the Closing,
the Company and such officers and directors and Initial Stockholders and their
Affiliates will not have had: (a) any specific Business Combination under
consideration or contemplation or (b) any substantive interactions or
discussions with any target business regarding a possible Business
Combination.
8
(xxvi) Registration
Rights.
Except
as described in the Prospectus, there are no persons with registration rights
or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the 1933
Act.
(xxvii) Accounting
Controls.
The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
GAAP
and to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management’s general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect to any
differences. Since the date of the Company’s most recent audited financial
statements included in the Prospectus, there has been (1) no material weakness
in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(xxviii) Compliance
with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and AMEX Rules.
The
Company has taken all necessary actions to ensure that, upon the effectiveness
of the Registration Statement, it will be in compliance with all provisions
of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”)
that are then in effect and which the Company is required to comply with as
of
the effectiveness of the Registration Statement, and is actively taking steps
to
ensure that it will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act not currently in effect, upon the effectiveness of such provisions, or
which
will become applicable to the Company at all times after the effectiveness
of
the Registration Statement. There is and has been no failure on the part of
the
Company or any of the Company’s officers or directors, in their capacities as
such, to comply with (as and when applicable), and immediately following the
effective date of the Registration Statement the Company will be in compliance
with, Part 8 of the American Stock Exchange’s “AMEX Company Guide,” as amended.
Further, there is and has been no failure on the part of the Company or any
of
the Company’s officers or directors, in their capacities as such, to comply with
(as and when applicable), and immediately following the effective date of the
Registration Statement the Company will be in compliance with, all other
applicable provisions of the American Stock Exchange corporate governance
requirements set forth in the AMEX Company Guide, as amended.
(xxix) Payment
of Taxes.
All
United States federal income tax returns of the Company required by law to
be
filed have been filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves
have been provided. The Company has filed all other tax returns that are
required to have been filed by them pursuant to applicable foreign, state,
local
or other law except insofar as the failure to file such returns would not result
in a Material Adverse Effect, and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company, except for such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books
of
the Company in respect of any income and corporation tax liability for any
years
not finally determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not result in a Material Adverse Effect.
9
(xxx) Statistical
and Market-Related Data.
Any
statistical and market-related data included in the Registration Statement
and
the Prospectus are based on or derived from sources that the Company believes
to
be reliable and accurate.
(xxxi) 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. There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any of the
officers or directors or Initial Stockholders of the Company or any of the
members of the families of any of them, except as disclosed in the Registration
Statement and the Prospectus.
(xxxii) Finder’s
Fees.
Except
as set forth in the Registration Statement and the Prospectus, there are no
claims, payments, arrangements, agreements or understandings relating to the
payment of a finder’s, consulting or origination fee by the Company or any
Initial Stockholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
best
of the Company’s knowledge, any Initial Stockholder that may affect the
Underwriters’ compensation, as determined by the Financial Industry Regulatory
Authority (“FINRA”).
(xxxiii) Payments
Within Twelve Months.
Other
than payments to the Underwriters in connection with this offering or otherwise
contemplated by this Agreement, the Company has not within the twelve months
prior to the Closing Time made any direct or indirect payments (in cash,
securities or otherwise) (i) to any person, as a finder’s fee, consulting fee or
otherwise, in consideration of such person raising capital for the Company
or
introducing to the Company persons who raised or provided capital to the
Company, (ii) to any FINRA member or (iii) to any person or entity that has
any
direct or indirect affiliation or association with any FINRA
member.
(xxxiv) Use
of
Proceeds.
None of
the net proceeds of the offering of the Securities will be paid by the Company
to any participating FINRA member or its affiliates, except as specifically
authorized herein and except as may be paid in connection with a Business
Combination as contemplated by the Prospectus.
(xxxv) Insiders’
FINRA Affiliation.
Based
on questionnaires distributed to such persons, no officer, director or any
beneficial owner of the Company’s unregistered securities has any direct or
indirect affiliation or association with any FINRA member.
(xxxvi) Warrant
Agreement.
The
Company has entered into a warrant agreement with respect to the Warrants and
the Insider Warrants with Continental Stock Transfer & Trust Company
substantially in the form filed as Exhibit 4.4 to the Registration Statement
(“Warrant Agreement”).
(xxxvii) Escrow
Agreement.
The
Company has caused the Initial Stockholders to enter into a stock escrow
agreement (“Escrow Agreement”) with Continental Stock Transfer & Trust
Company (“Escrow Agent”) substantially in the form filed as Exhibit 10.6 to the
Registration Statement, whereby the Common Stock owned by the Initial
Stockholders will be held in escrow by the Escrow Agent, until one year after
the consummation of a Business Combination. During such escrow period, the
Initial Stockholders shall be prohibited from selling or otherwise transferring
such shares (except as otherwise set forth in the Escrow Agreement) but will
retain the right to vote such shares. To the Company’s knowledge, the Escrow
Agreement is enforceable against each of the Initial Stockholders and will
not,
with or without the giving of notice or the lapse of time or both, result in
a
breach of, or conflict with any of the terms and provisions of, or constitute
a
default under, any agreement or instrument to which any of the Initial
Stockholders is a party. The Escrow Agreement shall not be amended, modified
or
otherwise changed without the prior written consent of the
Representative.
10
(xxxviii) Subscription
Agreements.
The
Company has entered into the Subscription Agreements substantially in the form
annexed as Exhibit 10.9 to the Registration Statement with the Insider
Purchasers to purchase the Insider Securities. Pursuant to the Subscription
Agreements, the Insider Purchasers have placed the purchase price for the
Insider Securities in escrow prior to the date hereof. Simultaneously with
the
consummation of the offering of the Securities, such purchase price shall be
deposited into the Trust Account pursuant to the Trust Agreement.
(xxxix) Trust
Agreement.
The
Company has entered into the Investment Management Trust Agreement with
Continental Stock Transfer & Trust Company with respect to certain proceeds
of the offering of the Securities and the sale of the Insider Securities
substantially in the form filed as Exhibit 10.5 to the Registration
Statement.
(c) Officer’s
Certificates.
Any
certificate signed by any officer of the Company delivered to the Representative
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered
thereby.
SECTION
2. Sale
and Delivery to Underwriters; Closing.
(a) Initial
Securities.
On the
basis of the representations and warranties herein contained and subject to
the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and
not
jointly, agrees to purchase from the Company, at a price of $7.44 per Unit
(including the approximate $0.22 per Unit to be held in the Trust Account as
deferred discount and commissions that will not be paid to the Underwriters
unless and until a Business Combination has been consummated by the Company
(the
“Deferred Underwriting Discount”)), the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional number
of Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, subject, in each case, to
such
adjustments among the Underwriters as the Representative in its sole discretion
shall make to eliminate any sales or purchases of fractional securities.
(b) Option
Securities.
In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters, severally and not jointly, to purchase
up
to an additional 1,425,000 Units at a price of $7.44 per Unit (including the
Deferred Underwriting Discount), less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities
but not payable on the Option Securities. The option hereby granted will expire
45 days after the date hereof and may be exercised in whole or in part from
time to time only for the purpose of covering overallotments which may be made
in connection with the offering and distribution of the Initial Securities
upon
notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a “Date of Delivery”) shall be determined by
▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of
the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule
A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its
discretion shall make to eliminate any sales or purchases of fractional
shares.
11
(c) Payment.
Payment
of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representative and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called “Closing
Time”).
In
addition, in the event that any or all of the Option Securities are purchased
by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representative
and the Company, on each Date of Delivery as specified in the notice from the
Representative to the Company.
Payment
for the Initial Securities shall be made by wire transfer of immediately
available funds as follows: $72,185,000 (which includes the Deferred
Underwriting Discount) of the proceeds received by the Company for the Initial
Securities shall be deposited in the Trust Account pursuant to the terms of
the
Trust Agreement and the remaining proceeds shall be paid to a bank account
designated by the Company, in each case against delivery to the Representative
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. Payment for the Option Securities shall
be
made by wire transfer of immediately available funds to the Trust Account
pursuant to the terms of the Trust Agreement against delivery to the
Representative for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations;
Registration.
Certificates for the Initial Securities and the Option Securities, if any,
shall
be in such denominations and registered in such names as the Representative
may
request in writing at least one full business day before the Closing Time or
the
relevant Date of Delivery, as the case may be. The certificates for the Initial
Securities and the Option Securities, if any, will be made available for
examination and packaging by the Representative in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
(e) Separate
Trading of Common Stock and Warrants.
The
shares of Common Stock and the Warrants included in the Securities will not
be
separately transferable until 90 days after the date hereof unless the
Representative informs the Company of its decision to allow earlier separate
trading, but in no event will the Representative allow separate trading until
the preparation of an audited balance sheet of the Company reflecting receipt
by
the Company of the proceeds of the offering of the Securities and the filing
of
a Form 8-K by the Company which includes such balance sheet.
12
SECTION
3. Covenants
of the Company.
The
Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests.
The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A, and will notify the Representative immediately, and confirm the notice
in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
or
for additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any
order preventing or suspending the use of any preliminary prospectus, or of
the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of
such purposes or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company becomes the subject
of a proceeding under Section 8A of the 1933 Act in connection with the offering
of the Securities. The Company will effect the filings required under Rule
424(b), in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)), and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for
filing under Rule 424(b) was received for filing by the Commission and, in
the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and,
if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing
of Amendments.
The
Company will give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to
the
Prospectus, and will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as
the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object. The Company has
given the Representative notice of any filings made pursuant to the 1934 Act
or
1934 Act Regulations within 48 hours prior to the Applicable Time; the Company
will give the Representative notice of its intention to make any such filing
from the Applicable Time to the Closing Time and will furnish the Representative
with copies of any such documents a reasonable amount of time prior to such
proposed filing, as the case may be, and will not file or use any such document
to which the Representative or counsel for the Underwriters shall
object.
(c) Delivery
of Registration Statements.
The
Company has furnished or will deliver to the Representative and counsel for
the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith) and signed copies of all consents and certificates of experts, and
will also deliver to the Representative, without charge, a conformed copy of
the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery
of Prospectuses.
The
Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by
the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
13
(e) Continued
Compliance with Securities Laws.
The
Company will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated
in
this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the
opinion of such counsel, at any such time to amend the Registration Statement
or
amend or supplement the Prospectus in order to comply with the requirements
of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue
Sky Qualifications.
The
Company will use its best efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representative may designate and to maintain such qualifications in effect
for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent
to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which
it
is not otherwise so subject.
(g) Rule
158.
The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide to the
Underwriters the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) Use
of Proceeds.
The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Prospectus under “Use of Proceeds.”
(i) Listing.
The
Company will use its best efforts to effect the listing of the Units (including
the Securities) and, once the securities comprising the Units begin separate
trading as described in Section 2(e), the Common Stock and Warrants on the
American Stock Exchange
(j) Restriction
on Sale of Securities.
The
Company hereby agrees that, until the consummation of a Business Combination,
it
shall not issue or sell any shares of Common Stock or any options or other
securities convertible into or exercisable or exchangeable for Common Stock,
or
any shares of Preferred Stock that participate in any manner in the Trust Fund
or that vote as a class with the Common Stock on a Business Combination. The
foregoing sentence shall not apply to (A) the Securities to be sold hereunder,
(B) the Warrants to be sold in the Private Placement or (C) securities to be
offered or sold in a Business Combination. Notwithstanding the foregoing, if
(1)
during the last 17 days of the restricted period the Company issues an earnings
release or material news or a material event relating to the Company occurs
or
(2) prior to the expiration of the restricted period, the Company announces
that
it will release earnings results or becomes aware that material news or a
material event will occur during the 16-day period beginning on the last day
of
the restricted period, the restrictions imposed in this clause (j) shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
14
(k) Reporting
Requirements.
The
Company, during the period when the Prospectus is required to be delivered
under
the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the rules and regulations of the Commission thereunder.
(l) Business
Combination.
The
Company will not consummate a Business Combination with any entity which is
affiliated with any Initial Stockholder or any of the Company’s officers or
directors or with respect to which any of its affiliates submitted a proposal
or
provided other merger and acquisition services unless the Company obtains an
opinion from an independent investment banking firm that such Business
Combination is fair to the Company’s stockholders from a financial perspective.
The Company shall not pay any Initial Stockholder or any of the Company’s
officers or directors or any of their respective affiliates any fees or
compensation for services rendered to the Company prior to, or in connection
with, the consummation of a Business Combination; provided that the Initial
Stockholders or any of the Company’s officers or directors shall be entitled to
reimbursement from the Company for their reasonable out-of-pocket expenses
incurred in connection with seeking and consummating a Business
Combination.
(m) Notice
to FINRA.
In the
event any person or entity (regardless of any FINRA affiliation or association)
is engaged to assist the Company in its search for a merger or acquisition
candidate or to provide any other merger and acquisition services within 90
days
immediately following the effective date of the Registration Statement, the
Company will provide the following to the FINRA and ▇▇▇▇▇▇▇ ▇▇▇▇▇: (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 FINRA’s Conduct Rules. The Company also agrees that
proper disclosure of such arrangement or potential arrangement will be made
in
the proxy statement which the Company will file for purposes of soliciting
stockholder approval for the Business Combination. Further, the Company agrees
to promptly advise the FINRA and the Representative and counsel to the
Underwriters if it learns that any officer, director or owner of at least 5%
of
the Company’s outstanding shares of Common Stock becomes an affiliate or
associated person of an FINRA member participating in the distribution of the
Securities.
(n) Investment
of Net Proceeds and Investment Company.
The
Company shall cause the proceeds of the offering of the Securities to be held
in
the Trust Account to be invested only as set forth in the Trust Agreement and
disclosed in the Prospectus. The Company will otherwise conduct its business
in
a manner so that it will not become subject to the Investment Company Act.
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.
(o) Form
8-K.
The
Company shall, on the date hereof, instruct its independent public accountants
to audit the financial statements of the Company as of the Closing Time (the
“Audited Financial Statements”) reflecting the receipt by the Company of the
proceeds of the initial public offering of the Securities and the Private
Placement. The Company shall file a Current Report on Form 8-K with the
Commission, which report shall contain such Audited Financial Statements, within
four business days of the Closing Time.
15
(p) Business
Combination Announcement.
If the
Company chooses to announce the consummation of a Business Combination through
a
press release (a “Business Combination Announcement”), the Company shall supply
the Representative with a draft of the Business Combination Announcement and
provide the Representative with a reasonable opportunity to comment thereon.
The
Company will not issue the Business Combination Announcement without the final
approval of ▇▇▇▇▇▇▇ ▇▇▇▇▇, which approval will not be unreasonably withheld.
(q) Fee
on Business Combination.
Upon
the consummation of a Business Combination, the Company agrees that it will
pay
to the Underwriters, out of funds in the Trust Account delivered to the Company,
the Deferred Underwriting Discount. The payment shall be made by wire transfer
to an account designated by the Representative on the closing date of the
Business Combination. Payment of the Deferred Underwriting Discount will be
made
out of the proceeds of the offering of the Securities held in the Trust Account.
The Underwriters shall have no claim to payment of any interest earned on the
portion of the proceeds held in the Trust Account representing the Deferred
Underwriting Discount. If the Company fails to consummate a Business Combination
within the required time period set forth in the Registration Statement, the
Deferred Underwriting Discount will not be paid to the Underwriter and will,
instead, be included in the liquidation distribution of the proceeds held in
the
Trust Account made to the holders of the IPO Shares (as defined in Section
3(v)). In connection with any such liquidation distribution, the Underwriters
will forfeit any rights or claims to the Deferred Underwriting Discount,
including any accrued interest thereon.
(r) Trust
Account Waiver.
The
Company hereby agrees that it will (a) not commence its due diligence
investigation of any operating business which the Company may seek to acquire
(the “Target Business”) and (b) not execute any agreement with any vendor or
entity, in each case unless and until the Company uses its reasonable best
efforts to obtain an acknowledgement in writing from such Target Business,
vendor or other entity with whom the Company executes agreements, whether
through a letter of intent, memorandum of understanding or other similar
document (and subsequently acknowledge the same in any definitive document
replacing any of the foregoing), that (i) it has read the Prospectus and
understands that the Company has established a Trust Account for the benefit
of
the public stockholders of the Company and that the Company may disburse monies
from the trust account only (x) to the public stockholders in the event they
elect to convert their IPO Shares (as defined in Section 3(v)), (y) to the
public stockholders upon the liquidation of the Company if the Company fails
to
consummate a Business Combination or (z) to the Company after, or concurrently
with, the consummation of a Business Combination and (ii) for and in
consideration of the Company agreeing to evaluate such Target Business for
purposes of consummating a Business Combination with it, or for and in
consideration of the Company agreeing to execute an agreement with such vendor
or other entity, such Target Business, vendor or other entity agrees that it
does not have any right, title, interest or claim of any kind in or to any
monies in the Trust Account (the “Claims”) and waives any Claim it may have in
the future as a result of, or arising out of, any negotiations, contracts or
agreements with the Company and will not seek recourse against the Trust Account
for any reason whatsoever.
(s) 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 of the Initial
Stockholders and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and will not allow any amendments to, or waivers
of, such Insider Letters without the prior written consent of the
Representative.
(t) Certificate
of Incorporation and Bylaws.
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 or bylaws without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇.
16
(u) Proxy
Information.
The
Company shall provide counsel to the Underwriters 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.
(v) 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
(the “Business Combination Vote”) even if the nature of the acquisition would
not otherwise require stockholder approval under applicable state law or stock
exchange rules; and (ii) that, in the event that the Company does not effect
a
Business Combination within 24 months from the date hereof, the Company’s
corporate existence will terminate and the Board of Directors and the officers
of the Company shall take all such action necessary to distribute the assets
of
the corporation in compliance with Section 281(b) of the Delaware General
Corporation Law and all amounts in the Trust Account plus any other net assets
of the Company not used for or reserved to pay obligations and claims or such
other corporate expense relating to or arising from the Company’s plan of
liquidation and distribution, including costs of dissolving and liquidating
the
Company, shall be distributed on a pro rata basis to holders of the IPO Shares
(as defined below). The Company shall pay no liquidating distributions with
respect to any other shares of capital stock of the Company other than IPO
Shares. There will be no distribution from the Trust Account with respect to
the
Warrants, which will expire worthless if the Company is so liquidated. With
respect to the Business Combination Vote, the Company shall cause each Initial
Stockholder to vote the shares of Common Stock owned by it immediately prior
to
the consummation of the 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. Any holder of the Company’s
Common Stock issued in this offering (the “IPO Shares”) who votes against the
Business Combination may, contemporaneous with such vote, demand that the
Company convert his or her IPO Shares into cash. If such a demand is made,
in
the event that a Business Combination is approved and is consummated by the
Company, the Company shall convert such shares into cash at a per share
conversion price equal to the quotient determined by dividing (i) the amount
in
the Trust Account (inclusive of any interest thereon), calculated as of two
business days prior to the proposed consummation of the Business Combination
divided by (ii) the total number of IPO Shares (the “Conversion Price”). If
holders of less than 30% in interest of the Company’s IPO Shares elect to
convert their IPO Shares, the Company will proceed with such Business
Combination. In any such event, the Company will convert shares, based upon
the
Conversion Price, from those holders of IPO Shares who affirmatively requested
such conversion and who voted against the Business Combination. If holders
of
30% or more in interest of the IPO Shares vote against approval of any potential
Business Combination and elect to convert their IPO Shares into cash, the
Company will not proceed with such Business Combination and will not convert
such shares.
(w) Rule
419.
The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the 1933 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 1934 Act during such period.
(x) Affiliated
Transactions.
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 or contractual
obligations the Initial Stockholders might have.
17
(y) Target
Net Assets.
The
Company agrees that the Target Business or Businesses that it acquires shall
have a fair market value equal, in the aggregate, 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 one or more standards generally accepted by the financial community, which
may include actual and potential sales, earnings, cash flow and/or book value.
If the Board of Directors of the Company is not able to independently determine
that the Target Business or Businesses have, in the aggregate, a fair market
value of at least 80% of the Company’s net assets at the time of such
acquisition, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm 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 or Businesses have sufficient
fair market value.
(z) Issuer
Free Writing Prospectuses.
The
Company agrees that, and each Underwriter represents and agrees that, it has
not
made and will not make any offer relating to the Securities that would
constitute an “issuer free writing prospectus,” as defined in Rule 433, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission.
(aa) 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.
(bb) Reports
to the Representative.
For a
period of five years from the date hereof or until such earlier time upon which
the Company is required to be liquidated, the Company will furnish to the
Representative (Attention: l)
and its
counsel copies of such financial statements and other periodic and special
reports as the Company from time to time furnishes generally to holders of
any
class of its securities, and promptly furnish to the Representative (i) a copy
of each periodic report the Company shall be required to file with the
Commission, (ii) a copy of every press release and every news item and article
with respect to the Company or its affairs which was released by the Company,
(iii) a copy of each Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received
or
prepared by the Company, (iv) five copies of each registration statement filed
by the Company with the Commission under the Securities Act, (v) a copy of
monthly statements, if any, setting forth such information regarding the
Company’s results of operations and financial position (including balance sheet,
profit and loss statements and data regarding outstanding purchase orders)
as is
regularly prepared by management of the Company and (vi) such additional
documents and information with respect to the Company and the affairs of any
future subsidiaries of the Company as the Representative may from time to time
reasonably request.
(cc) Disqualification
of Form S-1.
Until
the earlier of seven years from the date hereof or until the Warrants have
expired and are no longer exercisable, the Company will not take any action
or
actions which may prevent or disqualify the Company’s use of Form S-1 (or other
appropriate form) for the registration of the Warrants (and the Common Stock
issuable upon exercise of the Warrants) under the 1933 Act.
(dd) Accountants.
Until
the earlier of five years from the date hereof or until such earlier time upon
which the Company is required to be liquidated, the Company shall retain BDO
▇▇▇▇▇▇▇, LLP or another independent public accountant.
18
SECTION
4. Payment
of Expenses.
(a) Expenses.
The
Company will pay or cause to be paid all expenses incident to the performance
of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company’s counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and
any
supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus and of the Prospectus and any amendments
or supplements thereto and any costs associated with electronic delivery of
any
of the foregoing by the Underwriters to investors, (vii) the fees and expenses
of any transfer agent or registrar for the Securities, (viii) the costs and
expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the Securities, including without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations, travel and lodging expenses of the representatives
and
officers of the Company and any such consultants, and the cost of aircraft
and
other transportation chartered in connection with the road show, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by FINRA of the terms of the sale
of
the Securities and (x) the fees and expenses incurred in connection with the
listing of the Securities on the American Stock Exchange.
(b) Termination
of Agreement.
If this
Agreement is terminated by the Representative in accordance with the provisions
of Section 5, Section 9(a)(i) or Section 11 hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION
5. Conditions
of Underwriters’ Obligations.
The
obligations of the several Underwriters hereunder are subject to the accuracy
of
the representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement.
The
Registration Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened 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 counsel to the Underwriters.
A
prospectus containing the Rule 430A Information shall have been filed with
the
Commission in the manner and within the time frame required by Rule 424(b)
(without reliance on Rule 424(b)(8)) or a post-effective amendment providing
such information shall have been filed and declared effective in accordance
with
the requirements of Rule 430A.
(b) Opinion
of Counsel for Company.
At
Closing Time, the Representative shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto and to such further effect as counsel
to
the Underwriters may reasonably request.
19
(c) Opinion
of Counsel for Underwriters.
At
Closing Time, the Representative shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus and such other related matters as the
Representative may reasonably require, and the Company shall have furnished
to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. In giving such opinion such counsel
may
rely, as to all matters governed by the laws of jurisdictions other than the
law
of the State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar
as
such opinion involves factual matters, they have relied, to the extent they
deem
proper, upon certificates of officers of the Company and certificates of public
officials.
(d) Officers’
Certificate.
At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or
not
arising in the ordinary course of business, and the Representative shall have
received a certificate of the Chief Executive Officer and Chief Financial
Officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) 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, to their knowledge, contemplated by the Commission.
(e) Accountant’s
Comfort Letter.
At the
time of the execution of this Agreement, the Representative shall have received
from BDO ▇▇▇▇▇▇▇, LLP a letter dated such date, in form and substance
satisfactory to the Representative, together with signed or reproduced copies
of
such letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(f) Bring-down
Comfort Letter.
At
Closing Time, the Representative shall have received from BDO ▇▇▇▇▇▇▇, LLP
a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) Approval
of Listing.
At
Closing Time, the Securities shall have been approved for listing on the
American Stock Exchange, subject only to official notice of
issuance.
(h) No
Objection.
FINRA
shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(i) Insider
Securities.
On the
Closing Date, the Insider Purchasers shall have purchased the Insider Securities
and the purchase price for such Insider Securities shall be deposited in the
Trust Fund.
20
(j) Conditions
to Purchase of Option Securities.
In the
event that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true
and correct as of each Date of Delivery and, at the relevant Date of Delivery,
the Representative shall have received:
(i) Officers’
Certificate.
A
certificate, dated such Date of Delivery, of the Chief Executive Officer and
Chief Financial Officer of the Company confirming that the certificate delivered
at the Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery.
(ii) Opinion
of Counsel for Company.
The
favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Opinion
of Counsel for Underwriters.
The
favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriters, dated
such
Date of Delivery, relating to the Option Securities to be purchased on such
Date
of Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down
Comfort Letter.
A
letter from BDO ▇▇▇▇▇▇▇, LLP, in form and substance satisfactory to the
Representative and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representative pursuant to Section
5(f) hereof, except that the “specified date” in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such Date
of
Delivery.
(k) Additional
Documents.
At
Closing Time and at each Date of Delivery counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for
the
purpose of enabling them to pass upon the issuance and sale of the Securities
as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representative and counsel for the
Underwriters.
(l) Termination
of Agreement.
If any
condition specified in this Section shall not have been fulfilled when and
as
required to be fulfilled, this Agreement, or, in the case of any condition
to
the purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the
relevant Option Securities, may be terminated by the Representative by notice
to
the Company at any time at or prior to Closing Time or such Date of Delivery,
as
the case may be, and such termination shall be without liability of any party
to
any other party except as provided in Section 4 and except that Sections 1,
6, 7
and 8 shall survive any such termination and remain in full force and
effect.
21
SECTION
6. Indemnification.
(a) Indemnification
of Underwriters.
The
Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
as such term is defined in Rule 501(b) under the 1933 Act (each, an
“Affiliate”), its selling agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make
the statements therein not misleading or arising out of any untrue statement
or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary prospectus,
or
the Prospectus (or any amendment or supplement thereto).
(b) Indemnification
of Company, Directors and Officers.
Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and
each
person, if any, who controls the Company within the meaning of Section 15 of
the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or
any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use therein.
(c) Actions
against Parties; Notification.
Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected
by
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section
6(b)
above, counsel to the indemnified parties shall be selected by the Company.
An
indemnifying party may participate at its own expense in the defense of any
such
action; provided,
however,
that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without
the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release
of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to
or an admission of fault, culpability or a failure to act by or on behalf of
any
indemnified party.
22
(d) Settlement
without Consent if Failure to Reimburse.
If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent
if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior
to
such settlement being entered into and (iii) such indemnifying party shall
not
have reimbursed such indemnified party in accordance with such request prior
to
the date of such settlement.
SECTION
7. Contribution.
If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant
to
this Agreement shall be deemed to be in the same respective proportions as
the
total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth
on
the cover of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
23
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to
the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement
or
omission or alleged omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act
and each Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution
as
the Company. The Underwriters’ respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial Securities
set
forth opposite their respective names in Schedule A hereto and not
joint.
SECTION
8. Representations,
Warranties and Agreements to Survive.
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect regardless of (i) any investigation
made
by or on behalf of any Underwriter or its Affiliates or selling agents, any
person controlling any Underwriter, its officers or directors, any person
controlling the Company and (ii) delivery of and payment for the
Securities.
SECTION
9. Termination
of Agreement.
(a) Termination;
General.
The
Representative may terminate this Agreement, by notice to the Company, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity
or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case
the
effect of which is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or the
American Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, FINRA or any other
governmental authority, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (v) if a banking moratorium has been declared by either Federal
or
New York authorities.
24
(b) Liabilities.
If this
Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION
10. Default
by One or More of the Underwriters.
If one
or more of the Underwriters shall fail at Closing Time or a Date of Delivery
to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the “Defaulted Securities”), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not
less than all, of the Defaulted Securities in such amounts as may be agreed
upon
and upon the terms herein set forth; if, however, the Representative shall
not
have completed such arrangements within such 24-hour period, then:
(i) if
the
number of Defaulted Securities does not exceed 10% of the number of Securities
to be purchased on such date, each of the non-defaulting Underwriters shall
be
obligated, severally and not jointly, to purchase the full amount thereof in
the
proportions that their respective underwriting obligations hereunder bear to
the
underwriting obligations of all non-defaulting Underwriters, or
(ii) if
the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the Option Securities to be purchased and
sold on such Date of Delivery shall terminate without liability on the part
of
any non-defaulting Underwriter.
No
action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In
the
event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing
Time,
which does not result in a termination of the obligation of the Underwriters
to
purchase and the Company to sell the relevant Option Securities, as the case
may
be, either the Representative or the Company shall have the right to postpone
Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section 10.
SECTION
11. Default
by the Company.
If the
Company shall fail at Closing Time or at the Date of Delivery to sell the number
of Securities that it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any nondefaulting party;
provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain
in full force and effect. No action taken pursuant to this Section shall relieve
the Company from liability, if any, in respect of such default.
SECTION
12. Tax
Disclosure.
Notwithstanding any other provision of this Agreement, immediately upon
commencement of discussions with respect to the transactions contemplated
hereby, the Company (and each employee, representative or other agent of the
Company) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Company relating to such tax treatment and
tax structure. For purposes of the foregoing, the term “tax treatment” is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby, and the term “tax structure” includes any fact that may be
relevant to understanding the purported or claimed federal income tax treatment
of the transactions contemplated hereby.
25
SECTION
13. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriters shall be directed to the
Representative at 4 World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
of the Global Origination Counsel Group; notices to the Company shall be
directed to it at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of Chief
Executive Officer.
SECTION
14. No
Advisory or Fiduciary Relationship.
The
Company acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume 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) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
SECTION
15. Parties.
This
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or
corporation. No purchaser of Securities from any Underwriter shall be deemed
to
be a successor by reason merely of such purchase.
SECTION
16. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
SECTION
17. TIME.
TIME
SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
26
SECTION
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
19. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
27
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this instrument,
along
with all counterparts, will become a binding agreement among the Underwriters
and the Company in accordance with its terms.
Very
truly yours,
TREMISIS
ENERGY ACQUISITION CORPORATION II
By:
_______________________________________
Title:
CONFIRMED
AND ACCEPTED,
as
of the
date first above written:
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
_______________________________________
Authorized
Signatory
For
itself and as Representative of the other Underwriters named in Schedule A
hereto.
28
SCHEDULE
A
|
Name
of Underwriter
|
Number
of
Initial
Securities
|
Number
of
Option
Securities
|
|||||
|
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
|
|||||||
|
EarlyBirdCapital,
Inc.
|
|||||||
|
Total
|
9,500,000
|
1,425,000
|
|||||
Sch
A-1
Exhibit
A
FORM
OF
OPINION OF COMPANY’S COUNSEL
TO
BE
DELIVERED PURSUANT TO SECTION 5(b)
(i) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware.
(ii) The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Purchase
Agreement.
(iii) The
Company is duly qualified as a foreign corporation to transact business and
is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would
not result in a Material Adverse Effect.
(iv) The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectus in the column entitled “Actual” under the caption
“Capitalization” (except for subsequent issuances, if any, pursuant to the
Purchase Agreement or pursuant to the Subscription Agreements as described
in
the Prospectus); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of
any
securityholder of the Company arising by operation of law or under the Amended
and Restated Certificate of Incorporation or by-laws of the
Company.
(v) The
Securities have been duly authorized for issuance and sale to the Underwriters
pursuant to the Purchase Agreement and, when issued and delivered by the Company
pursuant to the Purchase Agreement against payment of the consideration set
forth in the Purchase Agreement, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(v) The
Common Stock included in the Securities has been duly authorized and, when
issued and paid for by the Underwriters pursuant to the Purchase Agreement,
will
be validly issued, fully paid and nonassessable. The shares of Common Stock
issuable upon exercise of the Warrants have been duly authorized and reserved
for issuance and, when issued and paid for pursuant to the Warrants, will be
validly issued, fully paid and nonassessable.
(vi) The
execution and delivery of the Warrants have been duly authorized by all
necessary corporate action on the part of the Company. The Warrants have been
duly executed and delivered by the Company. The Warrants, when issued and paid
for by the Underwriters pursuant to the Purchase Agreement, will constitute
valid and binding agreements 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 will be enforceable against the Company in accordance
with their terms.
(v) The
Insider Securities have been duly authorized for issuance and sale to the
Insider Purchasers pursuant to the Subscription Agreements and, when issued
and
delivered by the Company pursuant to the Subscription Agreements against payment
of the consideration set forth in the Subscription Agreements, will be validly
issued and fully paid and non-assessable. The execution and delivery of the
Insider Warrants have been duly authorized by all necessary corporate action
on
the part of the Company. The Insider Warrants have been duly executed and
delivered by the Company. The Insider Warrants, when issued and paid for by
the
Insider Purchasers pursuant to the Subscription Agreements, will constitute
valid and binding agreements 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 will be enforceable against the Company in accordance
with their terms.
A-1
(vii) The
issuance of the Securities and the Insider Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company arising
by operation of law or under the Amended and Restated Certificate of
Incorporation or by-laws of the Company.
(viii) To
the
best of our knowledge, the Company does not have any subsidiaries.
(ix) The
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(x) 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, (ii) that is filed
as an
exhibit to the Registration Statement or (iii) that is material to the Company’s
business, has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery of the other parties thereto,
constitute the valid and binding agreements of the Company, enforceable 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.
(x) The
Registration Statement, including any Rule 462(b) Registration Statement, has
been declared effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b) (without reference to Rule 424(b)(8));
and,
to the best of our knowledge, no stop order suspending the effectiveness of
the
Registration Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or
are pending or threatened by the Commission.
(xi) The
Registration Statement, including any Rule 462(b) Registration Statement and
the
Rule 430A Information, the Prospectus, and each amendment or supplement to
the
Registration Statement and Prospectus, as of their respective effective or
issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we need express no opinion) complied
as to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xii) The
form
of certificate used to evidence the Common Stock complies in all material
respects with all applicable statutory requirements, with any applicable
requirements of the charter and by-laws of the Company and the requirements
of
the American Stock Exchange.
(xiii) To
the
best of our knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company is a party, or to
which the property of the Company is subject, before or brought by any court
or
governmental agency or body, domestic or foreign.
A-2
(xiv) The
information in the Prospectus under “Descriptions of Securities—Units,”
“Descriptions
of Securities—Common Stock,” “Descriptions of Securities—Preferred Stock,”
“Descriptions of Securities—Warrants,” “United States Federal Income Tax
Considerations,” and “Indemnification of Directors and Officers” and in the
Registration Statement under Item 14, to the extent that it constitutes matters
of law, summaries of legal matters, the Company’s charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in
all
material respects.
(xv) All
descriptions in the Registration Statement of contracts and other documents
to
which the Company is a party are accurate in all material respects; to the
best
of our knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described
or
referred to in the Registration Statement or to be filed as exhibits to the
Registration Statement other than those described or referred to therein or
filed as exhibits thereto.
(xvi) No
filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign (other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or blue
sky
laws of the various states, as to which we need express no opinion) is necessary
or required in connection with the due authorization, execution and delivery
of
the Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xvii) The
execution, delivery and performance of the Purchase Agreement and the
consummation of the transactions contemplated in the Purchase Agreement and
in
the Registration Statement (including the issuance and sale of the Securities,
the sale of the Insider Securities in the Private Placement, and the use of
the
proceeds from the sale of the Securities and the Insider Securities as described
in the Prospectus under the caption “Use Of Proceeds”) and compliance by the
Company with its obligations under the Purchase Agreement and with its
obligations under the Subscription Agreements do not and will not, whether
with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the
Company pursuant to any contract, indenture, mortgage, deed of trust, loan
or
credit agreement, note, lease or any other agreement or instrument, known to
us,
to which the Company is a party or by which it may be bound, or to which any
of
the property or assets of the Company is subject (except for such conflicts,
breaches, defaults or Repayment Events or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic
or
foreign, having jurisdiction over the Company or any of its properties, assets
or operations.
(xviii) To
the
best of our knowledge, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act.
A-3
(xix) The
Company is not required, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be required, to register as an “investment
company” under the 1940 Act.
Nothing
has come to our attention that would lead us to believe that the Registration
Statement or any amendment thereto, including the Rule 430A Information, (except
for financial statements and schedules and other financial data included or
omitted therefrom, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Statutory Prospectus at the Applicable Time or the Prospectus or
any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which
we
need make no statement) at the time the Prospectus was issued, at the time
any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading.
In
rendering such opinion, such counsel may rely, as to matters of fact (but not
as
to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section
of
Business Law (1991).
A-4