UNDERWRITING AGREEMENT between CHINA GROWTH ALLIANCE LTD. and
between
and
JESUP
& ▇▇▇▇▇▇ SECURITIES CORPORATION
Dated:
_______ __, 2008
___________
__, 2008
Jesup
& ▇▇▇▇▇▇ Securities Corporation
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned, China Growth Alliance Ltd., a company formed under the laws of
the
Cayman Islands (“Company”),
hereby confirms its agreement with Jesup & ▇▇▇▇▇▇ Securities Corporation
(hereinafter referred to as “you”
(including its correlatives) or the “Representative”)
and
with the other underwriters named on Schedule 1 hereto for which the
Representative is acting as representative (the Representative and such other
underwriters being collectively called the “Underwriters”
or,
individually, an “Underwriter”)
as
follows:
1. Purchase
and Sale of Securities.
1.1. Firm
Securities.
1.1.1. Nature
and Purchase of Firm Securities.
(i) On
the
basis of the representations and warranties herein contained, but subject to
the
terms and conditions herein set forth, the Company agrees to issue and sell,
severally and not jointly, to the several Underwriters, an aggregate of
7,000,000 units (“Firm
Units”),
with
each unit (“Unit”)
consisting of: (i) one sub-unit (the “Sub-Unit”),
with
each Sub-Unit being comprised of one ordinary share of the Company, par value
$0.0004348 per share (the “Ordinary
Shares”)
and
one Class B warrant of the Company (the “Class
B Warrants”);
and
(ii) one Class A warrant of the Company (the “Class
A Warrants”
and
together with the Class B Warrants, the “Warrants”).
Each
Class A Warrant allows the holder thereof to purchase one Ordinary Share. The
Class B Warrants are identical to the Class A Warrants except that: (i) each
Class B Warrant entitles the holder to purchase one-half (1/2) of one of the
Ordinary Shares and (ii) the Class B Warrants will not trade separately, and
will trade as a Sub-Unit with the Ordinary Shares until the Company’s
consummation of a Business Combination (as hereinafter defined), at which point
the Sub-Units will automatically separate and every two Class B Warrants will
automatically convert into one (1) Class A Warrant and the Sub-Units and Class
B
Warrants will no longer be outstanding. The Company agrees that for every odd
lot Class B warrant so converted, the Company will pay to each holder thereof
on
a record date which is the first trading day following the initial Business
Combination (as defined below) cash in an amount equal to one half of the fair
market price of the Class A Warrants, which will be calculated by the volume
weighted average trading price of the Class A Warrants for the 15 trading days
prior to the date of the vote by the Company’s shareholders on the initial
Business Combination.
(ii) The
Underwriters, severally and not jointly, agree to purchase from the Company
the
number of Firm Units set forth opposite their respective names on Schedule
1
attached hereto and made a part hereof at a purchase price (net of discounts
and
commissions) of $7.76 per share. The Firm Units are to be offered initially
to
the public (the “Offering”)
at the
offering price set forth on the cover page of the Prospectus (as defined in
Section 2.1.1 hereof).
_______________,
2008
Page
2
of
33
(iii) The
Sub-Units and Class A Warrants which form a part of the Units (but not the
Class
B Warrants, which will continue to be attached as to the Ordinary Shares until
following a Business Combination) included in the Firm Units will not be
separately transferable until the 10th
Business
Day (as defined in Section 1.1.2 below) following the earlier to occur of:
(i)
the expiration of the underwriters’ overallotment option or (ii) its exercise in
full. In no event will the Sub-Units and Class A Warrants begin to trade
separately until the preparation and filing with the Securities and Exchange
Commission (the “Commission”)
of an
audited balance sheet of the Company reflecting receipt by the Company of the
proceeds of the Offering and the Private Placement (as defined in Section
2.22.3), including any proceeds the Company receives from the exercise of the
Over-allotment Option (as defined in Section 1.2.1), if such option is exercised
prior to the filing of the Form 8-K.
(iv) Each
Class A Warrant entitles the holder thereof to purchase one Ordinary Share
(or,
in the case of the Class B Warrants, one-half of one Ordinary Share) for $5.50
per Ordinary Shares during the period commencing on the later of: (A) the
consummation by the Company of a Business Combination or (B) one (1) year from
the effective date (the “Effective
Date”)
of the
Registration Statement (as defined in Section 2.1.1 below), and terminating
on
the five-year anniversary of the Effective Date. As used herein, the term
“Business
Combination”
shall
mean a share reconstruction or amalgamation, capital stock exchange, asset
or
stock acquisition of, contractual control arrangement or similar business
combination consummated by the Company with one or more operating entities
with
primary operations in the People’s Republic of China (as described more fully in
the Registration Statement).
(v) The
Firm
Units and the Option Units (as defined below) are hereinafter collectively
referred to as the “Public
Units.”
The
Sub-Units included within the Public Units are referred to herein as the
“Public
Sub-Units”.
The
Public Units, Public Sub-Units, the Ordinary Shares and the Warrants included
in
the Public Units and the Public Sub-Units, and the Ordinary Shares issuable
upon
exercise of the Warrants included in the Public Units and the Public Sub-Units
are hereinafter referred to collectively as the “Public
Securities.”
1.1.2. Payment
and Delivery.
(i) Delivery
and payment for the Firm Units shall be made at 10:00 a.m., Eastern time, on
the
third (3rd)
Business Day following the Effective Date (or the fourth (4th)
Business Day following the Effective Date, if the Registration Statement is
declared effective after 4:30 p.m.) or at such earlier time as shall be agreed
upon by the Representative and the Company at the offices of ▇▇▇▇▇▇▇ Savage
LLP,
counsel to the Underwriters (“▇▇▇▇▇▇▇
▇▇▇▇▇▇”),
or at
such other place (or remotely by facsimile or other electronic transmission)
as
shall be agreed upon by the Representative and the Company. The hour and date
of
delivery and payment for the Firm Units is called the “Closing
Date.”
(ii) Payment
for the Firm Units shall be made on the Closing Date by wire transfer in Federal
(same day) funds, payable as follows: $56,000,000 of the net proceeds received
by the Company for the Firm Units and the proceeds received by the Company
from
the Private Placement shall be deposited in a trust account for the benefit
of
the public shareholders of the Company (the “Public
Shareholders”)
established by the Company as described in the Registration Statement
(“Trust
Account”)
pursuant to the terms of an Investment Management Trust Agreement (the
“Trust
Agreement”)
between the Company and American Stock Transfer & Trust Company
(“AST”),
and
the remaining proceeds shall be paid to the order of the Company by wire
transfer in Federal (same day) funds upon delivery to you of certificates (in
form and substance satisfactory to the Underwriters) representing the Firm
Units
(or through the facilities of the Depository Trust Company (the “DTC”))
for
the account of the Underwriters. The Firm Units shall be registered in such
name
or names and in such authorized denominations as the Representative may request
in writing at least two (2) full Business Days prior to the Closing Date. The
Company shall not be obligated to sell or deliver the Firm Units except upon
tender of payment by the Representative for all the Firm Units. The term
“Business
Day”
means
any day other than a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law
to
close in New York City.
1.1.3. Deferral
of Underwriters’ Compensation.
On the
Closing Date (and, if applicable, on the Option Closing Date (as defined in
Section 1.2.2)), the Underwriters agree to deposit into the Trust
Account four and one-half percent (4.5%) of the gross proceeds of the
Offering (3.5% of which is attributable to the underwriting discount, and 1.0%
of which is attributable to the non-accountable expense allowance less $60,000
which previously has been advanced to the Representative) or $2,460,000
($2,754,000
if the
Over-allotment Option is exercised in full) (the “Deferred
Fees”)
until
the earlier of the completion of a Business Combination or the liquidation
of
the Trust Account. Upon the consummation of a Business Combination, the
Underwriters shall promptly receive the Deferred Fees along with any interest
accrued thereon, net of taxes paid or payable, but only with respect to those
Public Sub-Units as to which the component Ordinary Shares have not been
redeemed for cash by those shareholders who voted against the Business
Combination and exercised their redemption rights as described in the Prospectus
(as defined below). In the event that the Company is unable to consummate a
Business Combination and AST, the trustee of the Trust Account, is directed
to
liquidate the Trust Account, the Underwriters hereby agree to the following:
(i) forfeit any rights or claims to the Deferred Fees and any interest
accrued thereon; and (ii) that the Deferred Fees shall be distributed on a
pro-rata basis among the holders of the Public Sub-Units along with any interest
accrued thereon.
1.2. Over-allotment
Option.
1.2.1. Option
Units.
For the
purposes of covering any over-allotments in connection with the distribution
and
sale of the Firm Units, the Underwriters are hereby granted, severally and
not
jointly, an option to purchase up to an additional 1,050,000 units from the
Company (the “Over-allotment
Option”).
Such
additional 1,050,000 units, the net proceeds of which will be deposited in
the
Trust Account, are hereinafter referred to as “Option
Units.”
The
purchase price to be paid for the Option Units will be the same price per Option
Unit as the price per Firm Unit set forth in Section 1.1.1 hereof.
1.2.2. Exercise
of Option.
The
Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised
by the Representative as to all (at any time) or any part (from time to time)
of
the Option Units within 45 days after the Effective Date. The Underwriters
will
not be under any obligation to purchase any Option Units prior to the exercise
of the Over-allotment Option. The Over-allotment Option granted hereby may
be
exercised by the giving of oral notice to the Company from the Representative,
which must be confirmed in writing by overnight mail or facsimile or other
electronic transmission setting forth the number of Option Units to be purchased
and the date and time for delivery of and payment for the Option Units (the
“Option
Closing Date”),
which
will not be later than five (5) full Business Days after the date of the notice
or such other time as shall be agreed upon by the Company and the
Representative, at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or at such other place
(including remotely by facsimile or other electronic transmission) as shall
be
agreed upon by the Company and the Representative. If such delivery and payment
for the Option Units does not occur on the Closing Date, the Option Closing
Date
will be as set forth in the notice. Upon exercise of the Over-allotment Option,
the Company will become obligated to convey to the Underwriters, and, subject
to
the terms and conditions set forth herein, the Underwriters will become
obligated to purchase, the number of Option Units specified in such notice.
1.2.3. Payment
and Delivery.
Payment
for the Option Units will be made on the Option Closing Date by wire transfer
in
Federal (same day) funds as follows: $7.68 per Option Unit, which includes
$0.35
of Deferred Fees per Option Unit, shall be deposited in the Trust Account
pursuant to the Trust Agreement and the remaining proceeds shall be paid to
the
order of the Company upon delivery to you of certificates (in form and substance
satisfactory to the Underwriters) representing the Option Units (or through
the
facilities of DTC) for the account of the Underwriters. The Option Units shall
be registered in such name or names and in such authorized denominations as
the
Representative may request in writing at least two (2) full Business Days prior
to the Option Closing Date. The Company shall not be obligated to sell or
deliver the Option Units except upon tender of payment by the Representative
for
applicable Option Units.
1.3. Representative’s
Purchase Option.
1.3.1. Purchase
Option.
The
Company hereby agrees to issue and sell to the Representative (and/or its
designees) on the Effective Date an option (“Representative’s
Purchase Option”)
for
the purchase of an aggregate of 350,000 units (the “Representative’s
Units”)
(5% of
the total number of Firm Units sold in the Offering) for an aggregate purchase
price of $100.00. Each of the Representative’s Units is identical to the Firm
Units, except that the Warrants included in the Representative’s Units (the
“Representative’s
Warrants”)
have
an exercise price of $7.50 (136% of the exercise price of the Warrants included
in the units sold to the public). The Representative’s Purchase Option shall be
exercisable, in whole or in part, commencing on the later of the consummation
of
a Business Combination or one hundred eighty (180) days from the Effective
Date,
and expiring on the five-year anniversary of the Effective Date, at an initial
exercise price per Representative’s Unit of $10.00, which is equal to one
hundred and twenty five percent (125%) of the initial public offering price
of a
Unit. The Representative’s Purchase Option, the Representative’s Units, the
Sub-Units underlying the Representative’s Purchase Option, the Representative’s
Warrants and the Ordinary Shares underlying the Sub-Units and issuable upon
exercise of the Representative’s Warrants are hereinafter referred to
collectively as the “Representative’s
Securities.”
The
Public Securities and the Representative’s Securities are hereinafter referred
to collectively as the “Securities.”
The
Representative understands and agrees that there are significant restrictions
against transferring the Representative’s Purchase Option during the first year
after the Effective Date, as set forth in Section 3 of the Representative’s
Purchase Option.
1.3.2. Payment
and Delivery.
Delivery and payment for the Representative’s Purchase Option shall be made on
the Closing Date. The Company shall deliver to the Underwriters, upon payment
therefor, certificates for the Representative’s Purchase Option in the name or
names and in such authorized denominations as the Representative may request.
2. Representations
and Warranties of the Company.
The
Company represents and warrants to the Underwriters as of the Applicable Time
(as defined below) and as of the Closing Date and as of each Option Closing
Date, if any, as follows:
2.1. Filing
of Registration Statement.
2.1.1. Pursuant
to the Act.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement and an amendment or amendments thereto, on Form F-1
(File
No. 333-149770), including any related preliminary prospectus or prospectuses
(the “Preliminary
Prospectus”),
for
the registration of the Public Securities under the Securities Act of 1933,
as
amended (the “Act”),
which
registration statement and amendment or amendments have been prepared by the
Company in all material respects in conformity with the requirements of the
Act
and the rules and regulations of the Commission under the Act (the “Regulations”).
Except as the context may otherwise require, such registration statement on
file
with the Commission at the time the registration statement becomes effective
(including the prospectus, financial statements, schedules, exhibits and all
other documents filed as a part thereof or incorporated therein and all
information deemed to be a part thereof as of the Effective Date pursuant to
paragraph (b) of Rule 430A of the Regulations), is referred to herein as the
“Registration
Statement.”
The
final prospectus in the form first furnished to the Underwriters for use in
the
Offering, is hereinafter called the “Prospectus.”
The
Registration Statement has been declared effective by the Commission on the
date
hereof. “Applicable
Time”
means
[___ am/pm on ___, 2008] or such other time as agreed to by the Company and
the
Representative.
2.1.2. Pursuant
to the Exchange Act.
The
Company has filed with the Commission a Form 8-A (File Number 000-___) providing
for the registration under the Securities Exchange Act of 1934, as amended
(the
“Exchange
Act”),
of
the Units, the Sub-Units, the Class A Warrants, the Class B Warrants and the
Ordinary Shares. The registration of the Units, Sub-Units, the Class A Warrants,
the Class B Warrants and the Ordinary Shares under the Exchange Act has been
declared effective by the Commission on the date hereof.
2.2. No
Stop Orders, etc.
Neither
the Commission nor, to the best of the Company’s knowledge, any state regulatory
authority has issued any order preventing or suspending the use of any
Preliminary Prospectus or the Registration Statement or has instituted or,
to
the best of the Company’s knowledge, threatened to institute any proceedings
with respect to such an order.
2.3. Disclosures
in Registration Statement.
2.3.1. 10b-5
Representation.
At the
respective times the Registration Statement, Prospectus and any post-effective
amendments thereto become effective (and at the Closing Date and the Option
Closing Date, if any):
(i) The
Registration Statement, the Prospectus and any post-effective amendments thereto
did and will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and will in all material
respects conform to the requirements of the Act and the Regulations;
(ii) Neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, on such dates, do or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The representation and warranty made
in
this Section 2.3.1(ii) does not apply to statements made or statements omitted
in reliance upon and in conformity with written information furnished to the
Company with respect to the Underwriters by the Representative expressly for
use
in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto. The parties acknowledge and agree that such information
provided by or on behalf of any Underwriter consists solely of the names and
addresses of the Underwriters appearing in the “Underwriting” section of the
Prospectus and the following additional disclosure contained in the
“Underwriting” section of the Prospectus: (i) the final paragraph under the
heading “Underwriting Terms”; and (ii) the, first, second, fourth and fifth
paragraphs under the heading “Other Matters” (the “Underwriters’
Information”).
2.3.2. Disclosure
of Agreements.
The
agreements and documents described in the Preliminary Prospectus, the
Registration Statement and the Prospectus conform to the descriptions thereof
contained therein and there are no agreements or other documents required by
the
Act and the Regulations to be described in the Preliminary Prospectus, the
Registration Statement or the Prospectus or to be filed with the Commission
as
exhibits to the Registration Statement, that have not been so described or
filed. Each agreement or other instrument (however characterized or described)
to which the Company is a party or by which it is or may be bound or affected
and (i) that is referred to in the Prospectus, or (ii) is material to
the Company’s business, has been duly authorized and validly executed by the
Company, is in full force and effect in all material respects and is enforceable
against the Company and, to the Company’s knowledge, the other parties thereto,
in accordance with its terms, except (x) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (y) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to the equitable defenses and
to
the discretion of the court before which any proceeding therefor may be brought.
None of such agreements or instruments has been assigned by the Company, and
neither the Company nor, to the best of the Company’s knowledge, any other party
is in default thereunder and, to the best of the Company’s knowledge, no event
has occurred that, with the lapse of time or the giving of notice, or both,
would constitute a default thereunder. To the best of the Company’s knowledge,
performance by the Company of the material provisions of such agreements or
instruments will not result in a violation of any existing applicable law,
rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its assets
or businesses, including, without limitation, those relating to environmental
laws and regulations.
2.3.3. Prior
Securities Transactions.
No
securities of the Company have been sold by the Company or by or on behalf
of,
or for the benefit of, any person or persons controlling, controlled by, or
under common control with the Company since the Company’s formation, except as
disclosed in the Registration Statement.
2.3.4. Regulations.
The
disclosures in the Registration Statement concerning the effects of Federal,
State, local and foreign regulation on the Company’s business as currently
contemplated are correct in all material respects.
2.4. Changes
After Dates in Registration Statement.
2.4.1. No
Material Adverse Change.
Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise specifically stated therein:
(i) there has been no material adverse change in the condition, financial
or otherwise, or business prospects of the Company; (ii) there have been no
material transactions entered into by the Company, other than as contemplated
pursuant to this Agreement; and (iii) no officer or director of the Company
has resigned from any position with the Company.
2.4.2. Recent
Securities Transactions, etc.
Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as may otherwise be
indicated or contemplated herein or disclosed in the Registration Statement
and
the Prospectus, the Company has not: (i) issued any securities or incurred
any liability or obligation, direct or contingent, for borrowed money; or
(ii) declared or paid any dividend or made any other distribution on or in
respect to its capital stock.
2.5. Independent
Accountants.
To the
knowledge of the Company, UHY LLP (“UHY”),
whose
report is filed with the Commission as part of the Registration Statement,
are
independent registered public accountants as required by the Act and the
Regulations. UHY has not, during the periods covered by the financial statements
included in the Prospectus, provided to the Company any non-audit services,
as
such term is used in Section 10A(g) of the Exchange Act.
2.6. Financial
Statements.
The
financial statements, including the notes thereto and supporting schedules
included in the Registration Statement and Prospectus fairly present the
financial position and the results of operations of the Company at the dates
and
for the periods to which they apply; and such financial statements have been
prepared in conformity with generally accepted accounting principles
(“GAAP”),
consistently applied throughout the periods involved; and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. The Registration Statement discloses all material
off-balance sheet transactions, arrangements, obligations (including contingent
obligations), and other relationships of the Company with unconsolidated
entities or other persons that may have a material current or future effect
on
the Company’s financial condition, changes in financial condition, results of
operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses.
2.7. Authorized
Capital; Options, etc.
The
Company had, at the date or dates indicated in the Prospectus, the duly
authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Prospectus. Based on the assumptions stated
in
the Registration Statement and the Prospectus, the Company will have on the
Closing Date the adjusted stock capitalization set forth therein. Except as
set
forth in, or contemplated by, the Registration Statement and the Prospectus,
on
the Effective Date and on the Closing Date, there will be no options, warrants,
or other rights to purchase or otherwise acquire any authorized, but unissued
Ordinary Shares of the Company or any security convertible into Ordinary Shares
of the Company, or any contracts or commitments to issue or sell Ordinary Shares
or any such options, warrants, rights or convertible securities.
2.8. Valid
Issuance of Securities, etc.
2.8.1. Outstanding
Securities.
All
issued and outstanding securities of the Company issued prior to the
transactions contemplated by this Agreement have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any security
of
the Company or similar contractual rights granted by the Company. The authorized
Ordinary Shares conform in all material respects to all statements relating
thereto contained in the Registration Statement and the Prospectus. The offers
and sales of the outstanding Ordinary Shares were at all relevant times either
registered under the Act and the applicable state securities or Blue Sky laws
or, based in part on the representations and warranties of the purchasers of
such Ordinary Shares, exempt from such registration requirements.
2.8.2. Securities
Sold Pursuant to this Agreement.
The
Securities have been duly authorized and, when issued and paid for, will be
validly issued, fully paid and non-assessable; the holders thereof are not
and
will not be subject to personal liability by reason of being such holders;
the
Securities are not and will not be subject to the preemptive rights of any
holders of any security of the Company or similar contractual rights granted
by
the Company; and all corporate action required to be taken for the
authorization, issuance and sale of the Securities has been duly and validly
taken. The Securities conform in all material respects to all statements with
respect thereto contained in the Registration Statement. When issued, the
Representative’s Purchase Option, the Representative’s Warrants and the Warrants
will constitute valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment of the respective exercise prices therefor,
the number and type of securities of the Company called for thereby in
accordance with the terms thereof and such Representative’s Purchase Option, the
Representative’s Warrants and the Warrants are enforceable against the Company
in accordance with their respective terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally; (ii) as enforceability
of any indemnification or contribution provision may be limited under the
federal and state securities laws; and (iii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
2.9. Registration
Rights of Third Parties.
Except
as set forth in the Registration Statement and the Prospectus, no holders of
any
securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the
Company to register any such securities of the Company under the Act or to
include any such securities in a registration statement to be filed by the
Company.
2.10. Validity
and Binding Effect of Agreements.
This
Agreement, the Warrant Agreement (as defined in Section 2.21 hereof), the Trust
Agreement, the Services Agreement (as defined in Section 3.7.2 hereof), the
Subscription Agreement (as defined in Section 2.22.3 hereof) and the Escrow
Agreement (as defined in Section 2.22.2 hereof) have been duly and validly
authorized by the Company and constitute, and the Representative’s Purchase
Option has been duly and validly authorized by the Company and, when executed
and delivered, will constitute, the valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except: (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws; and
(iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
2.11. No
Conflicts, etc.
The
execution, delivery, and performance by the Company of this Agreement, the
Warrant Agreement, the Representative’s Purchase Option, the Trust Agreement,
the Services Agreement, the Subscription Agreement and the Escrow Agreement,
the
consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not
and
will not, with or without the giving of notice or the lapse of time or both:
(i) result in a material breach of, or conflict with any of the terms and
provisions of, or constitute a material default under, or result in the
creation, modification, termination or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms
of
any agreement or instrument to which the Company is a party except pursuant
to
the Trust Agreement referred to in Section 2.23 hereof; (ii) result in any
violation of the provisions of the Amended and Restated Memorandum and Articles
of Association of the Company (as the same may be amended from time to time,
the
“Articles
of Association”);
or
(iii) violate any existing applicable law, rule, regulation, judgment,
order or decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or business constituted
as of the date hereof.
2.12. No
Defaults; Violations.
No
material default exists in the due performance and observance of any term,
covenant or condition of any material license, contract, indenture, mortgage,
deed of trust, note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any other material
agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is
subject. The Company is not in violation of any term or provision of its
Articles of Association, or in violation of any franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over the Company or any
of
its properties or businesses.
China
Growth Alliance Ltd.
_______________,
2008
Page 9
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2.13. Corporate
Power; Licenses; Consents.
2.13.1. Conduct
of Business.
Except
as described in the Registration Statement and the Prospectus, the Company
has
all requisite corporate power and authority, and has all necessary
authorizations, approvals, orders, licenses, certificates and permits of and
from all governmental regulatory officials and bodies that it needs as of the
date hereof to conduct its business purpose as described in the Prospectus.
The
disclosures in the Registration Statement concerning the effects of federal,
state, local and foreign regulation on this Offering and the Company’s business
purpose as currently contemplated are correct in all material respects.
2.13.2. Transactions
Contemplated Herein.
The
Company has all corporate power and authority to enter into this Agreement
and
to carry out the provisions and conditions hereof, and all consents,
authorizations, approvals and orders required in connection therewith have
been
obtained. No consent, authorization or order of, and no filing with, any court,
government agency or other body is required for the valid issuance, sale and
delivery of the Securities and the consummation of the transactions and
agreements contemplated by this Agreement, the Warrant Agreement, the
Representative’s Purchase Option, the Trust Agreement, the Services Agreement,
the Subscription Agreement and the Escrow Agreement and as contemplated by
the
Prospectus, except with respect to applicable federal and state securities
laws
and the rules and regulations of the Financial Industry Regulatory Authority,
Inc. (“FINRA”).
2.14. D&O
Questionnaires.
To the
Company’s knowledge, all information contained in the questionnaires (the
“Questionnaires”)
completed by each of the Company’s shareholders immediately prior to the
Offering (the “Initial
Shareholders”)
and
provided to the Underwriters as an exhibit to his or her Insider Letter (as
defined in Section 2.22.1) is true and correct in all respects and the Company
has not become aware of any information which would cause the information
disclosed in the questionnaires completed by each Initial Shareholder to become
inaccurate and incorrect.
2.15. Litigation;
Governmental Proceedings.
There
is no action, suit, proceeding, inquiry, arbitration, investigation, litigation
or governmental proceeding pending or, to the Company’s knowledge, threatened
against, or involving the Company or, to the Company’s knowledge, any Initial
Shareholder which has not been disclosed in the Registration Statement and
the
Prospectus or in connection with the Company’s listing application for the
listing of the Company’s securities on the NASDAQ Capital Market (the
“NASDAQ”).
2.16. Good
Standing.
The
Company has been duly organized and is validly existing as a corporation and
is
in good standing under the laws of the Cayman Islands as of the date hereof,
and
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of property
or
the conduct of business requires such qualification, except where the failure
to
qualify would not have a material adverse effect on the assets, business or
operations of the Company.
2.17. Stop
Orders.
The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or any part thereof.
China
Growth Alliance Ltd.
_______________,
2008
Page 10
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2.18.
Transactions
Affecting Disclosure to FINRA.
2.18.1. Finder’s
Fees.
Except
as described 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 Shareholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any Initial Shareholder that may affect the Underwriters’
compensation, as determined by FINRA.
2.18.2. Payments
Within Twelve Months.
Except
as described in the Registration Statement and the Prospectus, the Company
has
not made any direct or indirect payments (in cash, securities or otherwise)
to:
(i) any person, as a finder’s fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing
to
the Company persons who raised or provided capital to the Company; (ii) to
any FINRA member; or (iii) to any person or entity that has any direct or
indirect affiliation or association with any FINRA member, within the twelve
months prior to the Effective Date, other than payments to ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Securities Corporation, an Underwriter, in connection with the Offering.
2.18.3. Use
of
Proceeds.
None of
the net proceeds of the Offering will be paid by the Company to any
participating FINRA member or its affiliates, except as specifically authorized
herein and except as may be paid in connection with a Business Combination
as
contemplated by the Prospectus.
2.18.4. Initial
Shareholders’ 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 (as determined in
accordance with the rules and regulations of FINRA). The Company will advise
the
Representative and ▇▇▇▇▇▇▇ Savage if it learns that any officer, director or
owner of at least 5% of the Company’s outstanding Ordinary Shares is or becomes
an affiliate or associated person of a FINRA member participating in the
Offering.
2.19. Foreign
Corrupt Practices Act.
Neither
the Company nor any of the Initial Shareholders or any other person acting
on
behalf of the Company has, directly or indirectly, given or agreed to give
any
money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or
agent
of a customer or supplier, or official or employee of any governmental agency
or
instrumentality of any government (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or any political party or
candidate for office (domestic or foreign) or other person who was, is, or
may
be in a position to help or hinder the business of the Company (or assist it
in
connection with any actual or proposed transaction) that (i) might subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a
material adverse effect on the assets, business or operations of the Company
as
reflected in any of the financial statements contained in the Prospectus or
(iii) if not continued in the future, might adversely affect the assets,
business, operations or prospects of the Company. The Company has taken
reasonable steps to ensure that its accounting controls and procedures are
sufficient to cause the Company to comply in all material respects with the
Foreign Corrupt Practices Act of 1977, as amended.
2.20. Officers’
Certificate.
Any
certificate signed by any duly authorized officer of the Company and delivered
to you or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be deemed a representation and warranty by
the
Company to the Underwriters as to the matters covered thereby.
China
Growth Alliance Ltd.
_______________,
2008
Page 11
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33
2.21. Warrant
Agreement.
The
Company has entered into a warrant agreement with respect to the Warrants and
the Representative’s Warrants with AST, as warrant agent, substantially in the
form filed as an exhibit to the Registration Statement (the “Warrant
Agreement”).
2.22. Agreements
with Initial Shareholders.
2.22.1. Insider
Letters.
The
Company has caused to be duly executed legally binding and enforceable
agreements (except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification, contribution or
noncompete provision may be limited under the federal and state securities
laws,
and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought)
annexed as Exhibits 10.4 to 10.10 to the Registration Statement (the
“Insider
Letters”),
pursuant to which each of the Initial Shareholders of the Company agree to
certain matters, including but not limited to, certain matters described as
being agreed to by them under the “Proposed Business” section of the Prospectus.
2.22.2. Escrow
Agreement.
The
Company has caused (or will, as of the Closing Date, cause) the Initial
Shareholders to enter into a securities escrow agreement (the “Escrow
Agreement”)
with
AST (in this context, the “Escrow
Agent”)
in
form and substance satisfactory to the Underwriters, whereby the Ordinary Shares
owned by the Initial Shareholders will be held in escrow by the Escrow Agent,
until the earlier
of: (i) one year after the consummation of a Business Combination, (ii) three
years from the Effective Date, or (iii) the
consummation of a liquidation, share reconstruction and amalgamation, stock
exchange or other similar transaction which results in all of the Company’s
shareholders having the right to exchange their Ordinary Shares for cash,
securities or other property subsequent to our consummating a Business
Combination. During such escrow period, the Initial Shareholders shall be
prohibited from selling or otherwise transferring such shares (except to spouses
and children of Initial Shareholders and trusts established for their benefit
and as otherwise set forth in the Escrow Agreement), but will retain the right
to vote such shares. The Escrow Agreement shall not be amended, modified or
otherwise changed without the prior written consent of the Representative.
2.22.3. Subscription
Agreement.
Fair
Value Opportunity Ltd. (the “Subscriber”),
a
Samoa company which is an affiliate of the Company and of which more than a
majority of the interests are collectively
owned
by
▇▇.
▇▇▇▇
and Messrs. Zhu and Ma
(certain
officers and directors of the Company), has executed and delivered an agreement,
annexed as Exhibit 10.12 of the Registration Statement (the “Subscription
Agreement”),
pursuant to which the Subscriber, among other things, has purchased an aggregate
of 3,040,000 warrants identical (except as disclosed in the Registration
Statement and the Prospectus) to the Warrants (the “Placement
Warrants”)
at a
purchase price of $0.75 per Placement Warrant in a private placement in
accordance with Regulation S under the Act occurring immediately prior to the
Closing (the “Private
Placement”).
The
Subscriber and the Company have delivered executed copies of the Subscription
Agreement and the Subscriber has delivered the purchase price on or before
the
Effective Date. Pursuant to the Subscription Agreement: (i) $2,270,000 of the
proceeds from the sale of the Placement Warrants will be deposited by the
Company in the Trust Account in accordance with the terms of the Trust Agreement
prior to the Effective Date, and (ii) the Subscriber has waived any and all
rights and claims that it may have to any proceeds, and any interest thereon,
held in the Trust Account in respect of the Placement Warrants in the event
that
a Business Combination is not consummated and the Trust Account is liquidated
in
accordance with the terms of the Trust Agreement. There was no placement agent
in the Private Placement and no party shall be entitled to a placement fee
or
expense allowance from the sale of the Placement Warrants.
China
Growth Alliance Ltd.
_______________,
2008
Page
12
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33
2.23. Investment
Management Trust Agreement.
The
Company has entered into the Trust Agreement with respect to certain proceeds
of
the Offering and the Private Placement in the form annexed as Exhibit 10.1
to
the Registration Statement.
2.24. Covenants
Not to Compete.
No
Initial Shareholder is subject to any noncompetition agreement with any employer
or prior employer which could materially affect his ability to be an Initial
Shareholder, employee, officer and/or director of the Company.
2.25. Investments.
No more
than 45% of the “value” (as defined in Section 2(a)(41) of the Investment
Company Act of 1940 (the “Investment
Company Act”))
of
the Company’s total assets consist of, and no more than 45% of the Company’s net
income after taxes is derived from, securities other than “Government
Securities” (as defined in Section 2(a)(16) of the Investment Company Act).
2.26. Subsidiaries.
The
Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.27. Related
Party Transactions.
Except
as disclosed in the Registration Statement and the Prospectus, 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.
2.28. Board
of Directors.
The
Board of Directors of the Company is comprised of the persons set forth under
the heading of the Prospectus captioned “Management”. The qualifications of the
persons serving as board members and the overall composition of the board comply
with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules promulgated thereunder
applicable to the Company. At least one member of the Board of Directors of
the
Company qualifies as a “financial expert” as such term is defined under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules promulgated thereunder.
2.29. ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance.
2.29.1. Disclosure
Controls.
The
Company has developed and currently maintains disclosure controls and procedures
that will comply with Rule 13a-15 or 15d-15 of the Exchange Act, and such
controls and procedures are effective to ensure that all material information
concerning the Company will be made known on a timely basis to the individuals
responsible for the preparation of the Company’s Exchange Act filings and other
public disclosure documents.
2.29.2. Compliance.
The
Company is, or on the Effective Date will be, in material compliance with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 applicable to it, and has
implemented or will implement such programs and taken reasonable steps to ensure
the Company’s future compliance (not later than the relevant statutory and
regulatory deadlines therefor) with all the material provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
3. Covenants
of the Company.
The
Company covenants and agrees as follows:
3.1. Amendments
to Registration Statement.
The
Company will deliver to the Representative, prior to filing, any amendment
or
supplement to the Registration Statement or Prospectus proposed to be filed
after the Effective Date and not file any such amendment or supplement to which
the Representative shall reasonably object in writing.
China
Growth Alliance Ltd.
_______________,
2008
Page 13
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33
3.2. Federal
Securities Laws.
3.2.1. Compliance.
During
the time when a Prospectus is required to be delivered under the Act, the
Company will use its best efforts to comply with all requirements imposed upon
it by the Act, the Regulations and the Exchange Act and by the regulations
under
the Exchange Act, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Public Securities in accordance
with the provisions hereof and the Prospectus. If at any time when a Prospectus
relating to the Public Securities is required to be delivered under the Act,
any
event shall have occurred as a result of which, in the opinion of counsel for
the Company or counsel for the Underwriters, the Prospectus, as then amended
or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company will notify the Representative promptly and
prepare and file with the Commission, subject to Section 3.1 hereof, an
appropriate amendment or supplement in accordance with Section 10 of the Act.
3.2.2. Filing
of Final Prospectus.
The
Company will file the Prospectus (in form and substance satisfactory to the
Representative) with the Commission pursuant to the requirements of Rule 424
of
the Regulations.
3.2.3. Exchange
Act Registration.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated, the Company will use its best
efforts to maintain the registration of the Units, Sub-Units, Class A Warrants,
Class B Warrants and Ordinary Shares under the provisions of the Exchange Act.
The Company will not deregister the Units under the Exchange Act without the
prior written consent of the Representative.
3.2.4. Free
Writing Prospectuses.
The
Company represents and agrees that it has not made and will not make any offer
relating to the Public Securities that would constitute an issuer free writing
prospectus, as defined in Rule 433 of the 1933 Act, without the prior consent
of
the Representative. Any such free writing prospectus consented to by the
Representative is hereinafter referred to as a “Permitted
Free Writing Prospectus.”
The
Company represents that its will treat each Permitted Free Writing Prospectus
as
an “issuer free writing prospectus” as defined in Rule 433, and has complied and
will comply with the applicable requirements of Rule 433 of the 1933 Act,
including timely Commission filing where required, legending and record keeping.
3.3. Purchases
of Ordinary Shares by the Company.
In the
event that, prior to the Business Combination, the Company enters into privately
negotiated transactions to acquire IPO Shares (as defined below) from Public
Shareholders who have elected to redeem their Public Sub-Units for a pro rata
cash portion of the Trust Account as contemplated by Section 8.7.2 hereof in
order to change such shareholders’ vote in connection with the Business
Combination, the Company agrees that it shall only pay to the applicable Public
Shareholders funds up to the per share redemption price set forth the
Prospectus. Negotiated premiums, if any, to such per share redemption price
may
not be paid by the Company.
3.4. Delivery
to Underwriters of Prospectuses.
The
Company will deliver to each of the several Underwriters, without charge, from
time to time during the period when the Prospectus is required to be delivered
under the Act or the Exchange Act such number of copies of each Preliminary
Prospectus and the Prospectus as such Underwriters may reasonably request and,
as soon as the Registration Statement or any amendment or supplement thereto
becomes effective, deliver to you two original executed Registration Statements,
including exhibits, and all post-effective amendments thereto and copies of
all
exhibits filed therewith or incorporated therein by reference and all original
executed consents of certified experts.
China
Growth Alliance Ltd.
_______________,
2008
Page 14
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33
3.5. Effectiveness
and Events Requiring Notice to the Representative.
The
Company will use its best efforts to cause the Registration Statement to remain
effective with a current prospectus for as long as the Warrants remain
outstanding and will notify the Representative immediately and confirm the
notice in writing: (i) of the effectiveness of the Registration Statement
and any amendment thereto; (ii) of the issuance by the Commission of any
stop order or of the initiation, or the threatening, of any proceeding for
that
purpose; (iii) of the issuance by any state securities commission of any
proceedings for the suspension of the qualification of the Public Securities
for
offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose; (iv) of the mailing and delivery to the
Commission for filing of any amendment or supplement to the Registration
Statement or Prospectus; (v) of the receipt of any comments or request for
any additional information from the Commission; and (vi) of the happening
of any event during the period described in Section 3.5 hereof that, in the
judgment of the Company, makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or that requires the making
of
any changes in the Registration Statement or the Prospectus in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Commission or any state securities commission shall
enter
a stop order or suspend such qualification at any time, the Company will make
every reasonable effort to obtain promptly the lifting of such order.
3.6. Intentionally
omitted.
3.7. Transactions.
3.7.1. Business
Combinations.
The
Company will not consummate a Business Combination with any entity which is
affiliated with any Initial Shareholder unless the Company obtains an opinion
from an independent investment banking firm that the Business Combination is
fair to the Company’s shareholders from a financial perspective.
3.7.2. Administrative
Services.
The
Company has entered into an agreement (the “Services
Agreement”)
with
Shanghai Fair Value Investment Company Limited (the “Provider”),
pursuant to which the Provider will make available to the Company general and
administrative services, including but not limited to reception, secretarial
and
general office services general and administrative services, for an amount
equal
to $7,500.00 per month.
3.7.3. Affiliate
Compensation.
The
Company shall not pay any Initial Shareholder or any of their affiliates any
fees or compensation from the Company, for services rendered to the Company
prior to, or in connection with, the consummation of a Business Combination;
provided that the Initial Shareholders shall be entitled to reimbursement from
the Company for their out-of-pocket expenses incurred in connection with seeking
and consummating a Business Combination.
3.8. Intentionally
omitted.
3.9. Intentionally
omitted.
3.10. Financial
Public Relations Firm.
Promptly after the execution of a definitive agreement for a Business
Combination, the Company shall retain a financial public relations firm
reasonably acceptable to the Representative for a term to be agreed upon by
the
Company and the Representative.
China
Growth Alliance Ltd.
_______________,
2008
Page 15
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33
3.11. Reports
to the Representative.
3.11.1. Periodic
Reports, etc.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated, the Company will furnish to
the
Representative (Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Managing Director) 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
also 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 6-K prepared and filed by the Company; (iv) five copies of each
Registration Statement; (v) such additional documents and information with
respect to the Company and the affairs of any future subsidiaries of the Company
as the Representative may from time to time reasonably request; provided the
Representatives shall sign, if requested by the Company, a Regulation FD
compliant confidentiality agreement which is reasonably acceptable to the
Representative and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection with the Representative’s
receipt of such information. Documents filed with the Commission pursuant to
its
▇▇▇▇▇ system shall be deemed to have been delivered to the Representative
pursuant to this Section.
3.11.2. Transfer
Sheets.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated, the Company shall retain a
transfer and warrant agent acceptable to the Representative (the “Transfer
Agent”)
and
will furnish to the Representatives at the Company’s sole cost and expense such
transfer sheets of the Company’s securities as the Representative may reasonably
request, including the daily and monthly consolidated transfer sheets of the
Transfer Agent and DTC. AST is acceptable to the Underwriters to act as Transfer
Agent.
3.11.3. Trading
Reports.
During
such time as the Public Securities are listed on NASDAQ the Company shall
provide to the Representative, at its expense, such reports published by the
NASDAQ relating to price trading of the Public Securities, as the Representative
shall reasonably request.
3.12. Disqualification
of Form F-1.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated (and except in connection with
a
“going private” transaction by the Company), the Company will not take any
action or actions which may prevent or disqualify the Company’s use of Form F-1
(or other appropriate form) for the registration of the Warrants and the
Representative’s Warrants under the Act.
3.13. Payment
of Expenses.
3.13.1. General
Expenses Related to the Offering.
The
Company hereby agrees to pay on each of the Closing Date and the Option Closing
Date, if any, to the extent not paid at the Closing Date, all expenses incident
to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (i) the preparation, printing, filing and
mailing (including the payment of postage with respect to such mailing) of
the
Registration Statement, the Preliminary and final Prospectuses and the printing
and mailing of this Agreement and related documents, including the cost of
all
copies thereof and any amendments thereof or supplements thereto supplied to
the
Underwriters in quantities as may be required by the Underwriters; (ii) the
printing, engraving, issuance and delivery of certificates for the Sub-Units
and
the Warrants (and their component securities) included in the Public Units
and
the Representative’s Purchase Option, including any transfer or other taxes
payable thereon; (iii) filing fees incurred in registering the Offering
with FINRA; (iv) filing fees, costs and expenses incurred in listing the
Public Units, the Sub-Units and the Ordinary Shares and Class A Warrants
included therein on the NASDAQ; (v) fees and disbursements of AST (in its
various capacities); (vi) the cost of up to 20 Lucite cubes or similar
commemorative items in a style reasonably requested by the Representative;
(vii)
the cost (up to $12,000) of the investigative search firm that conducted an
investigation of the principals of the Company and (viii) all other costs and
expenses incident to the performance by the Company of its obligations hereunder
which are not otherwise specifically provided for in this Section 3.13.1
including, without limitation, the Company’s “road-show” expenses up to a
maximum of $25,000. The Representative may also deduct from the net proceeds
of
the Offering payable to the Company on the Closing Date, or the Option Closing
Date, if any, the expenses set forth herein to be paid by the Company to the
Representative.
China
Growth Alliance Ltd.
_______________,
2008
Page 16
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3.13.2. Non-accountable
Expenses.
The
Company further agrees that, in addition to the expenses payable pursuant to
Section 3.13.1, on the Closing Date it will pay to the Representative a
non-accountable expense allowance equal to one percent (1.0%) of the gross
proceeds received by the Company from the sale of the Firm Units by deduction
from the proceeds of the Offering contemplated herein ($60,000 of which has
previously been advanced to Jesup & ▇▇▇▇▇▇ Securities Corporation);
provided
however,
that
$500,000 of such proceeds shall be deposited into the Trust Account pursuant
to
Section 1.1.3 of this Agreement and shall be released upon the earlier of a
Business Combination or the liquidation of the Trust Account.
3.14. Application
of Net Proceeds.
The
Company will apply the net proceeds from the Offering received by it in a manner
consistent with the application described under the caption “Use Of Proceeds” in
the Prospectus.
3.15. Delivery
of Earnings Statements to Security Holders.
The
Company will make generally available to its security holders as soon as
practicable, but not later than the first day of the fifteenth full calendar
month following the Effective Date, an earnings statement (which need not be
certified by independent public or independent certified public accountants
unless required by the Act or the Regulations, but which shall satisfy the
provisions of Rule 158(a) under Section 11(a) of the Act) covering a period
of
at least twelve consecutive months beginning after the Effective Date.
3.16. 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 candidate or to
provide any other merger and acquisition services, the Company will provide
the
following to the Representative (who shall make an appropriate filing with
FINRA) prior to the consummation of the Business Combination: (i) complete
details of all services and copies of agreements governing such services; and
(ii) justification as to why the person or entity providing the merger and
acquisition services should not be considered an “underwriter and related
person” with respect to the Company’s initial public offering, as such term is
defined in Rule 2710(a)(6) of FINRA’s Conduct Rules. The Company also agrees
that proper disclosure of such arrangement or potential arrangement will be
made
in the Registration Statement and the proxy statement, which the Company will
file for purposes of soliciting shareholder approval for the Business
Combination.
3.17. Stabilization.
Neither
the Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Representative) has taken or will
take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act,
or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Public Units.
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3.18. Internal
Controls.
The
Company will maintain a system of internal accounting controls sufficient to
provide reasonable assurances that: (i) transactions are executed in
accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary in order to permit preparation
of financial statements in accordance with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
3.19. Accountants.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated, the Company shall retain UHY
or
other independent public accountants reasonably acceptable to the
Representative.
3.20. Form
6-K.
The
Company shall, on the date hereof, retain its independent public accountants
to
audit the balance sheet of the Company as of the Closing Date (the “Audited
Balance Sheet”)
reflecting the receipt by the Company of the proceeds of the Offering and the
Private Placement. As soon as the Audited Balance Sheet becomes available,
the
Company shall promptly file a report on Form 6-K with the Commission, which
Report shall contain the Company’s Audited Balance Sheet.
3.21. FINRA.
The
Company shall advise the Representative (who shall make an appropriate filing
with FINRA) if it is aware that any 5% or greater shareholder of the Company
becomes an affiliate or associated person of an FINRA member participating
in
the distribution of the Company’s Public Securities.
3.22. Investment
Company.
The
Company shall cause the proceeds of the Offering to be held in the Trust Account
to be invested only in “government securities” or in money market funds meeting
certain conditions under Rule 2a-7 promulgated under the Investment Company
Act,
as set forth in the Trust Agreement and disclosed in the Prospectus. The Company
will otherwise conduct its business in a manner so that it will not become
subject to the Investment Company Act. Furthermore, once the Company consummates
a Business Combination, it will be engaged in a business other than that of
investing, reinvesting, owning, holding or trading securities.
3.23. No
Fiduciary Duties.
The
Company acknowledges and agrees that the Underwriters’ responsibility to the
Company is solely contractual in nature and that none of the Underwriters or
their affiliates shall be acting in a fiduciary capacity, or otherwise owe
any
fiduciary duty to the Company in connection with the Offering and the other
transactions contemplated by this Agreement.
4. Conditions
of Underwriters’ Obligations.
The
obligations of the several Underwriters to purchase and pay for the Public
Units, as provided herein, shall be subject to the continuing accuracy of the
representations and warranties of the Company as of the date hereof and as
of
each of the Closing Date and the Option Closing Date, if any, to the accuracy
of
the statements of officers of the Company made pursuant to the provisions hereof
and to the performance by the Company of its obligations hereunder and to the
following conditions:
4.1. Regulatory
Matters.
4.1.1. Effectiveness
of Registration Statement.
The
Registration Statement shall have become effective not later than 5:00 P.M.,
Eastern time, on the date of this Agreement or such later date and time as
shall
be consented to in writing by you, and, at each of the Closing Date and the
Option Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or shall be pending or contemplated by the
Commission and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
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4.1.2. FINRA
Clearance.
By the
Effective Date, the Representative shall have received clearance from FINRA
as
to the amount of compensation allowable or payable to the Underwriters as
described in the Registration Statement.
4.1.3. NASDAQ
Capital Market.
On the
Effective Date, the Company’s Public Units, Sub-Units, Class A Warrants and
Ordinary Shares shall have been approved for listing on the NASDAQ.
4.1.4. Free
Writing Prospectuses.
The
Representative covenants with the Company that the Underwriters will not use,
authorize the use of, refer to, or participate in the planning for the use
of a
“free writing prospectus” as defined in Rule 405 under the 1933 Act, which term
includes use of any written information furnished by the Commission to the
Company and not incorporated by reference into the Registration Statement,
without the prior written consent of the Company. Any such free writing
prospectus consented to by the Company is hereinafter referred to as an
“Underwriter
Free Writing Prospectus.”
4.2. Company
Counsel Matters.
4.2.1. Closing
Date Opinion of Counsel.
On the
Closing Date, the Representative shall have received the favorable opinion
of
Ellenoff
▇▇▇▇▇▇▇▇ & Schole LLP,
counsel
to the Company (“EG&S”),
dated
the Closing Date, addressed to the Representative and in form and substance
satisfactory to the Representative to the effect that (it being agreed that
EG&S may rely ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇-▇▇-▇▇▇, with respect to matters
governed by Cayman Islands law):
(i) Based
solely on a certificate of good standing dated within 10 days of the Closing
Date, the Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the Cayman
Islands.
(ii) All
issued and outstanding Ordinary Shares have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof are not
subject to personal liability by reason of being such holders; and none of
such
securities were issued in violation of the preemptive rights of any stockholder
of the Company arising by operation of law or under the Articles of Association.
The offers and sales of the outstanding Ordinary Shares were at all relevant
times either registered under the Act or exempt from such registration
requirements. The authorized, and to the extent of EG&S’s knowledge,
outstanding capital stock of the Company is as set forth in the
Prospectus.
(iii) The
Ordinary Shares included in the Securities have been duly authorized and, when
issued and paid for, will be validly issued, fully paid and non-assessable;
the
holders thereof are not and will not be subject to personal liability solely
by
reason of being such holders. The Ordinary Shares included in the Securities
are
not and will not be subject to the preemptive rights of any holders of any
security of the Company arising by operation of law or under the Articles of
Association. When issued, the Representative’s Purchase Option, the
Representative’s Warrants, the Placement Warrants and the Warrants will
constitute valid and binding obligations of the Company to issue and sell,
upon
exercise thereof and payment therefor, the number and type of securities of
the
Company called for thereby and the Warrants, the Placement Warrants, the
Representative’s Purchase Option, and the Representative’s Warrants, when
issued, in each case, are enforceable against the Company in accordance with
their respective terms, except (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (b) as enforceability of any indemnification or contribution
provision may be limited under the Federal and state securities laws, and (c)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. The
certificates representing the Securities are in due and proper
form.
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(iv) This
Agreement, the Warrant Agreement, the Services Agreement, the Trust Agreement,
the Escrow Agreement and the Subscription Agreement have each been duly and
validly authorized and, when executed and delivered by the Company, constitute,
and the Representative’s Purchase Option has been duly and validly authorized by
the Company and, when executed and delivered, will constitute, the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except (a) as such enforceability may
be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (b) as enforceability of any indemnification or
contribution provisions may be limited under the Federal and state securities
laws, and (c) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(v) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
the Representative’s Purchase Option, the Escrow Agreement, the Trust Agreement,
the Services Agreement and the Subscription Agreement and compliance by the
Company with the terms and provisions thereof and the consummation of the
transactions contemplated thereby, and the issuance and sale of the Securities,
do not and will not, with or without the giving of notice or the lapse of time,
or both, (a) to such counsel’s knowledge, based on representations of the
Company made to such counsel and contained in a certificate provided by an
executive officer of the Company, conflict with, or result in a breach of,
any
of the terms or provisions of, or constitute a default under, or result in
the
creation or modification of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company pursuant to the terms of,
any mortgage, deed of trust, note, indenture, loan, contract, commitment or
other agreement or instrument filed as an exhibit to the Registration Statement,
(b) result in any violation of the provisions of the Articles of
Association, or (c) to such counsel’s knowledge, violate any statute or any
judgment, order or decree, rule or regulation applicable to the Company of
any
court, domestic or foreign, or of any federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company,
its
properties or assets.
(vi) The
Registration Statement and the Prospectus and any post-effective amendments
or
supplements thereto (other than the financial statements included therein,
as to
which no opinion need be rendered) each as of their respective dates complied
as
to form in all material respects with the requirements of the Act and
Regulations. The Securities conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus. No
United
States or state statute or regulation required to be described in the Prospectus
is not described as required (except as to the Blue Sky laws of the various
states, as to which such counsel expresses no opinions), nor are any contracts
or documents of a character required to be described in
the
Registration Statement or
the
Prospectus or to be filed as exhibits to the Registration Statement not so
described or filed as required (except for the contracts and documents described
in the “Underwriting” section of the Registration Statement, as to which such
counsel expresses no opinions).
(vii) Based
solely on a notice of effectiveness received from the Securities and Exchange
Commission, the Registration Statement is effective under the Act. To such
counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have
been instituted or are pending or threatened under the Act or applicable state
securities laws.
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(viii) The
Company is not and, after giving effect to the Offering and sale of the
Securities and the application of the proceeds thereof as described in the
Registration Statement and the Prospectus, will not be, an “investment company”
as defined in the Investment Company Act of 1940, as amended.
(ix) The
opinion of EG&S shall further include a statement (which shall not be deemed
a legal opinion) to the effect that such counsel has participated in conferences
with officers and other representatives of the Company, the Underwriters and
the
independent registered public accounting firm of the Company, at which
conferences the contents of the Preliminary Prospectus, the Registration
Statement and the Prospectus contained therein and related matters were
discussed and, although such counsel is not passing upon and does not assume
any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus contained therein,
solely on the basis of the foregoing without independent check and verification,
no facts have come to the attention of such counsel which lead them to believe
that the Registration Statement or any amendment thereto, at the time the
Registration Statement or amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading or
the
Prospectus or any amendment or supplement thereto, at the time they were filed
pursuant to Rule 424(b) or at the date of such counsel’s opinion, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statement therein, in light of
the
circumstances under which they were made, not misleading (except that such
counsel need express no view with respect to the financial information,
statistical data and information and matters regarding non-United States laws,
rules and regulations included in the Registration Statement or the
Prospectus)
4.2.2. Option
Closing Date Opinion of Counsel.
On the
Option Closing Date, if any, the Representative shall have received the
favorable opinion of EG&S, dated the Option Closing Date, addressed to the
Representative and in form and substance reasonably satisfactory to the
Representative, confirming as of the Option Closing Date, the statements made
by
EG&S in their respective opinions delivered on the Closing Date.
4.2.3. Reliance.
In
rendering such opinion, such counsel may rely: (i) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to the
Representative) of other counsel reasonably acceptable to the Representative,
familiar with the applicable laws; and (ii) as to matters of fact, to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdiction having
custody of documents respecting the corporate existence or good standing of
the
Company, provided that copies of any such statements or certificates shall
be
delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ if requested. The opinion of EG&S and any
opinion relied upon by EG&S shall include a statement to the effect that it
may be relied upon by counsel for the Underwriters in its opinion delivered
to
the Underwriters.
4.3. Cold
Comfort Letter.
At the
time this Agreement is executed, and at each of the Closing Date and the Option
Closing Date, if any, you shall have received a letter, addressed to the
Representative and in form and substance satisfactory in all respects (including
the non-material nature of the changes or decreases, if any, referred to in
clause (iii) below) to you and to ▇▇▇▇▇▇▇ Savage from UHY dated, respectively,
as of the date of this Agreement and as of the Closing Date and the Option
Closing Date, if any:
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Growth Alliance Ltd.
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33
(i) Confirming
that they are independent public accountants with respect to the Company within
the meaning of the Act and the applicable Regulations and that they have not,
during the periods covered by the financial statements included in the
Prospectus, provided to the Company any non-audit services, as such term is
used
in Section 10A(g) of the Exchange Act;
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and the published
Regulations thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders
and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible
for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that:
(a) the unaudited financial statements of the Company included in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Regulations or are
not
fairly presented in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements of the Company included
in the Registration Statement; (b) at a date not later than five days prior
to the Effective Date, Closing Date or Option Closing Date, as the case may
be,
there was any change in the capital stock or long-term debt of the Company,
or
any decrease in the shareholders’ equity of the Company as compared with amounts
shown in the September 27, 2007 balance sheet included in the Registration
Statement, other than as set forth in or contemplated by the Registration
Statement, or, if there was any decrease, setting forth the amount of such
decrease, and (c) during the period from September 27, 2007 to a specified
date not later than five days prior to the Effective Date, Closing Date or
Option Closing Date, as the case may be, there was any decrease in revenues,
net
earnings or net earnings per Ordinary Share, in each case as compared with
the
corresponding period in the preceding year and as compared with the
corresponding period in the preceding quarter, other than as set forth in or
contemplated by the Registration Statement, or, if there was any such decrease,
setting forth the amount of such decrease;
(iv) Setting
forth, at a date not later than five days prior to the Effective Date, the
amount of liabilities of the Company (including a breakdown of commercial papers
and notes payable to banks);
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Prospectus in each case to the extent that
such
amounts, numbers, percentages, statements and information may be derived from
the general accounting records, including work sheets, of the Company and
excluding any questions requiring an interpretation by legal counsel, with
the
results obtained from the application of specified readings, inquiries and
other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(vi) Stating
that they have not since the Company’s formation brought to the attention of the
Company’s management any reportable condition related to internal structure,
design or operation as defined in the Statement on Auditing Standards No. 60
“Communication of Internal Control Structure Related Matters Noted in an Audit,”
in the Company’s internal controls; and
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Growth Alliance Ltd.
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(vii) Statements
as to such other matters incident to the transaction contemplated hereby as
you
may reasonably request.
4.4. Officers’
Certificates.
4.4.1. Officers’
Certificate.
At each
of the Closing Date and the Option Closing Date, if any, the Representative
shall have received a certificate of the Company signed by the Chairman of
the
Board or the Chief Financial Officer and the Secretary or Assistant Secretary
of
the Company, dated the Closing Date or the Option Closing Date, as the case
may
be, respectively, to the effect that the Company has performed all covenants
and
complied with all conditions required by this Agreement to be performed or
complied with by the Company prior to and as of the Closing Date, or the Option
Closing Date, as the case may be, and that the conditions set forth in Section
4.5 hereof have been satisfied as of such date and that, as of the Closing
Date
and the Option Closing Date, as the case may be, the representations and
warranties of the Company set forth in Section 2 hereof are true and correct.
In
addition, the Representative will have received such other and further
certificates of officers of the Company as the Representative may reasonably
request.
4.4.2. Secretary’s
Certificate.
At each
of the Closing Date and the Option Closing Date, if any, the Representative
shall have received a certificate of the Company signed by the Secretary or
Assistant Secretary of the Company, dated the Closing Date or the Option Date,
as the case may be, respectively, certifying: (i) that the Articles of
Association are true and complete, have not been modified and are in full force
and effect; (ii) that the resolutions of the Company’s Board of Directors
relating to the public offering contemplated by this Agreement are in full
force
and effect and have not been modified; (iii) all correspondence between the
Company or its counsel and the Commission; and (iv) as to the incumbency of
the officers of the Company. The documents referred to in such certificate
shall
be attached to such certificate.
4.5. No
Material Changes.
Prior
to and on each of the Closing Date and the Option Closing Date, if any:
(i) there shall have been no material adverse change or development
involving a prospective material adverse change in the condition or prospects
or
the business activities, financial or otherwise, of the Company from the latest
dates as of which such condition is set forth in the Registration Statement
and
Prospectus; (ii) no action suit or proceeding, at law or in equity, shall
have been pending or threatened against the Company or any Initial Shareholder
before or by any court or federal or state commission, board or other
administrative agency wherein an unfavorable decision, ruling or finding may
materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration
Statement and Prospectus; (iii) no stop order shall have been issued under
the Act and no proceedings therefor shall have been initiated or threatened
by
the Commission; and (iv) the Registration Statement and the Prospectus and
any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Act and the
Regulations and shall conform in all material respects to the requirements
of
the Act and the Regulations, and neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto shall contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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4.6. Delivery
of Agreements.
4.6.1. Effective
Date Deliveries.
On the
Effective Date, the Company shall have delivered to the Representative executed
copies of the Escrow Agreement, the Trust Agreement, the Warrant Agreement,
the
Services Agreement, the Subscription Agreement and all of the Insider Letters.
4.6.2. Closing
Date Deliveries.
On the
Closing Date, the Company shall have delivered to the Representative executed
copies of the Representative’s Purchase Option.
4.7. Opinion
of Counsel for the Underwriters.
All
proceedings taken in connection with the authorization, issuance or sale of
the
Securities as herein contemplated shall be reasonably satisfactory in form
and
substance to you and to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and you shall have received from ▇▇▇▇▇▇▇
Savage a favorable opinion, dated the Closing Date and the Option Closing Date,
if any, with respect to such of these proceedings as you may reasonably require.
On or prior to the Effective Date, the Closing Date and the Option Closing
Date,
as the case may be, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have been furnished such documents,
certificates and opinions as they may reasonably require for the purpose of
enabling them to review or pass upon the matters referred to in this Section
4.7, or in order to evidence the accuracy, completeness or satisfaction of
any
of the representations, warranties or conditions herein contained.
5. Indemnification.
5.1. Indemnification
of Underwriters.
5.1.1. General.
Subject
to the conditions set forth below, the Company agrees to indemnify and hold
harmless each of the Underwriters, their respective directors, officers and
employees and each person, if any, who controls any such Underwriter
(“controlling
person”)
within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, whether arising out of any
action between any of the Underwriters and the Company or between any of the
Underwriters and any third party or otherwise) to which they or any of them
may
become subject under the Act, the Exchange Act or any other statute or at common
law or otherwise or under the laws of foreign countries, arising out of or
based
upon any untrue statement or alleged untrue statement of a material fact
contained in (i) any Preliminary Prospectus, the Registration Statement or
the Prospectus (as from time to time each may be amended and supplemented);
(ii) any post-effective amendment or amendments or any new registration
statement and prospectus in which is included securities of the Company issued
or issuable upon exercise of the Representative’s Purchase Option; or
(iii) any application or other document or written communication (in this
Section 5 collectively called “application”)
executed by the Company or based upon written information furnished by the
Company in any jurisdiction in order to qualify the Public Units under the
securities laws thereof or filed with the Commission, any state securities
commission or agency, or NASDAQ; or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, unless such statement or omission was made in reliance
upon and in conformity with the Underwriters’ Information, or any amendment or
supplement thereof, or in any application, as the case may be. With respect
to
any untrue statement or omission or alleged untrue statement or omission made
in
the Preliminary Prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact
that a copy of the Prospectus was not given or sent to the person asserting
any
such loss, liability, claim or damage at or prior to the written confirmation
of
sale of the Securities to such person as required by the Act and the
Regulations, and if the untrue statement or omission has been corrected in
the
Prospectus, unless such failure to deliver the Prospectus was a result of
non-compliance by the Company with its obligations under Section 3.4 hereof.
The
Company agrees promptly to notify the Representative of the commencement of
any
litigation or proceedings against the Company or any of its officers, directors
or controlling persons in connection with the issue and sale of the Securities
or in connection with the Registration Statement or Prospectus.
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5.1.2. Procedure.
If any
action is brought against an Underwriter or controlling person in respect of
which indemnity may be sought against the Company pursuant to Section 5.1.1,
such Underwriter shall promptly notify the Company in writing of the institution
of such action and the Company shall assume the defense of such action,
including the employment and fees of counsel (subject to the reasonable approval
of such Underwriter) and payment of actual expenses. Such Underwriter or
controlling person shall have the right to employ its or their own counsel
in
any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or such controlling person unless: (i) the employment
of such counsel at the expense of the Company shall have been authorized in
writing by the Company in connection with the defense of such action;
(ii) the Company shall not have employed counsel to have charge of the
defense of such action; or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
the reasonable fees and expenses of not more than one additional firm of
attorneys selected by the Underwriter and/or controlling person shall be borne
by the Company. Notwithstanding anything to the contrary contained herein,
if
the Underwriter or controlling person shall assume the defense of such action
as
provided above, the Company shall have the right to approve the terms of any
settlement of such action which approval shall not be unreasonably withheld.
5.2. Indemnification
of the Company.
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, officers, Initial Shareholders and each
person, if any, who controls the Company within the meaning of Section 15 of
the
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in Section 5.1 (including but not limited
to
any and all legal or other expenses reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
any
claim whatsoever, whether arising out of any action between any of the
Underwriters and the Company or between any of the Underwriters and any third
party or otherwise), as incurred, but only with respect to untrue statements
or
omissions, or alleged untrue statements or omissions made in: (a) (i) any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto or (ii) any application, in each case in
reliance upon, and in strict conformity with, the Underwriters’ Information or
(b) in any “free writing prospectus” used by the Underwriters in connection with
the Offering that is not an Underwriter Free Writing Prospectus.
In case
any action shall be brought against the Company or any other person or entity
so
indemnified based on any Preliminary Prospectus, the Registration Statement
or
the Prospectus or any amendment or supplement thereto or any application or
any
such free writing prospectus, and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties
given
to the Company, and the Company and each other person so indemnified shall
have
the rights and duties given to the several Underwriters by the provisions of
Section 5.1.2.
China
Growth Alliance Ltd.
_______________,
2008
Page
25
of
33
5.3. Settlements.
The
indemnifying party under this Section 5 shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be
withheld, delayed or conditioned unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability
or
expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by Section 5.1.2 hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if: (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (x) includes an unconditional release of such indemnified party from
all
liability on claims that are the subject matter of such action, suit or
proceeding and (y) 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.
5.4. Contribution.
5.4.1. Contribution
Rights.
In
order to provide for just and equitable contribution under the Act in any case
in which (i) any person entitled to indemnification under this Section 5
makes claim for indemnification pursuant hereto but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding
the
fact that this Section 5 provides for indemnification in such case, or
(ii) contribution under the Act, the Exchange Act or otherwise may be
required on the part of any such person in circumstances for which
indemnification is provided under this Section 5, then, and in each such case,
the Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial offering price appearing
thereon (to the extent that it shall have actually been paid from the Trust
Account to the Underwriters as of each date a contribution obligation is payable
hereunder; otherwise, the Underwriters’ contribution shall be limited to the
underwriting discount paid on the Closing Date) ( the “Underwriters’
Contribution Percentage”)
and the
Company is responsible for the balance; provided,
that, no
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not
guilty of such fraudulent misrepresentation; and,
provided, further,
that
upon consummation of a Business Combination and delivery of the Deferred Fees
to
the Underwriters, the Underwriters’ Contribution Percentage shall be increased
by the percentage that the Deferred Fees bears to the initial offering price
(the “Final
Contribution Percentage”)
and
the Final Contribution Percentage shall hereafter be applicable only to new
claims for contribution by the Company. If the allocation provided by the
immediately preceding sentence is unavailable pursuant to law, rule, regulation
or as a result of a judicial determination, the Company and the Underwriters
shall contribute in such proportion as is appropriate to reflect the relative
fault of the Company and the Underwriters in connection with the actions or
omissions which resulted in such loss, claim, damage, liability or action,
as
well as any other relevant equitable considerations. The relative fault of
the
Company and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the provisions of this Section 5.4.1,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Public Securities underwritten by it
and
distributed to the public were offered to the public exceeds the amount of
any
damages that such Underwriter has otherwise been required to pay in respect
of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section, each director, officer and employee of an Underwriter or the Company,
as applicable, and each person, if any, who controls an Underwriter or the
Company, as applicable, within the meaning of Section 15 of the Act shall have
the same rights to contribution as the Underwriters or the Company, as
applicable.
China
Growth Alliance Ltd.
_______________,
2008
Page
26
of
33
5.4.2. Contribution
Procedure.
Within
fifteen days after receipt by any party to this Agreement (or its
representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing party”), notify the contributing party of
the commencement thereof, but the omission to so notify the contributing party
will not relieve it from any liability which it may have to any other party
other than for contribution hereunder. In case any such action, suit or
proceeding is brought against any party, and such party notifies a contributing
party or its representative of the commencement thereof within the aforesaid
fifteen days, the contributing party will be entitled to participate therein
with the notifying party and any other contributing party similarly notified.
Any such contributing party shall not be liable to any party seeking
contribution on account of any settlement of any claim, action or proceeding
effected by such party seeking contribution without the written consent of
such
contributing party. The contribution provisions contained in this Section are
intended to supersede, to the extent permitted by law, any right to contribution
under the Act, the Exchange Act or otherwise available. The Underwriters’
obligations to contribute pursuant to this Section 5.4 are several and not
joint.
6. Default
by an Underwriter.
6.1. Default
Not Exceeding 10% of Firm Units or Option Units.
If any
Underwriter or Underwriters shall default in its or their obligations to
purchase the Firm Units or the Option Units, if the Over-allotment Option is
exercised, hereunder, and if the number of the Firm Units or Option Units with
respect to which such default relates does not exceed in the aggregate 10%
of
the number of Firm Units or Option Units that all Underwriters have agreed
to
purchase hereunder, then such Firm Units or Option Units to which the default
relates shall be purchased by the non-defaulting Underwriters in proportion
to
their respective commitments hereunder.
6.2. Default
Exceeding 10% of Firm Units or Option Units.
In the
event that the default addressed in Section 6.1 relates to more than 10% of
the
Firm Units or Option Units, you may in your discretion arrange for yourself
or
for another party or parties to purchase such Firm Units or Option Units to
which such default relates on the terms contained herein. If, within one (1)
Business Day after such default relating to more than 10% of the Firm Units
or
Option Units, you do not arrange for the purchase of such Firm Units or Option
Units, then the Company shall be entitled to a further period of one (1)
Business Day within which to procure another party or parties satisfactory
to
you to purchase said Firm Units or Option Units on such terms. In the event
that
neither you nor the Company arrange for the purchase of the Firm Units or Option
Units to which a default relates as provided in this Section 6, this Agreement
will automatically be terminated by you or the Company without liability on
the
part of the Company (except as provided in Sections 3.13 and 5 hereof) or the
several Underwriters (except as provided in Section 5 hereof); provided,
however,
that if
such default occurs with respect to the Option Units, this Agreement will not
terminate as to the Firm Units; and provided further that nothing herein shall
relieve a defaulting Underwriter of its liability, if any, to the other several
Underwriters and to the Company for damages occasioned by its default hereunder.
China
Growth Alliance Ltd.
_______________,
2008
Page
27
of
33
6.3. Postponement
of Closing Date.
In the
event that the Firm Units or Option Units to which the default relates are
to be
purchased by the non-defaulting Underwriters, or are to be purchased by another
party or parties as aforesaid, you or the Company shall have the right to
postpone the Closing Date or Option Closing Date for a reasonable period, but
not in any event exceeding five (5) Business Days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents and arrangements, and the Company agrees
to
file promptly any amendment to the Registration Statement or the Prospectus
that
in the opinion of counsel for the Underwriter may thereby be made necessary.
The
term “Underwriter” as used in this Agreement shall include any party substituted
under this Section 6 with like effect as if it had originally been a party
to
this Agreement with respect to such Securities.
7. Intentionally
Omitted.
8. Additional
Covenants.
8.1. Board
Composition and Board Designations.
For a
period of three years from the Effective Date, or until such earlier time upon
which the Company is required to be liquidated, the Company shall ensure that:
(i) the qualifications of the persons serving as board members and the
overall composition of the board comply with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and
the rules promulgated thereunder and with the listing requirements of the
NASDAQ, AMEX or any other national securities exchange or national securities
association, as the case may be, in the event the Company seeks to have its
Public Securities listed on another exchange or quoted on an automated quotation
system, and (ii) if applicable, at least one member of the board of
directors qualifies as a “financial expert” as such term is defined under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules promulgated thereunder.
8.2. Additional
Shares or Options.
The
Company hereby agrees that until the Company consummates a Business Combination,
it shall not issue any Ordinary Shares or any options or other securities
convertible into Ordinary Shares, or any Preferred Shares which participate
in
any manner in the Trust Account or which vote as a class with the Ordinary
Shares on a Business Combination.
8.3. Trust
Account Waiver Letters.
The
Company hereby agrees that it will use its commercial best efforts not to
commence its due diligence investigation of any operating business which the
Company seeks to acquire (“Target
Business”)
or
obtain the services of any vendor unless and until the Target Business or the
vendor executes a waiver letter in the form attached hereto as Exhibit
A
and
B,
respectively.
8.4. Insider
Letters.
The
Company shall not take any action or omit to take any action which would cause
a
material breach of any of the Insider Letters executed between each Initial
Shareholder and the Representative and will not allow any amendments to, or
waivers of, such Insider Letters without the prior written consent of the
Representative.
8.5. Articles
of Association.
The
Company shall not take any action or omit to take any action that would cause
the Company to be in material breach or violation of its Articles of
Association.
8.6. Intentionally
omitted.
China
Growth Alliance Ltd.
_______________,
2008
Page
28
of
33
8.7. Acquisition/Liquidation
Procedures.
8.7.1. Shareholder
Vote and Liquidation.
The
Company agrees: (i) that, prior to the consummation of any Business
Combination, it will submit such transaction to the Company’s shareholders for
their approval (“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
shareholder approval under the applicable law of its jurisdiction of
incorporation; and (ii) that, in the event that the Company does not effect
a Business Combination within 24 months from the consummation of this Offering,
the Company will use its best efforts to liquidate and distribute to all holders
of IPO Shares (defined below) an aggregate sum equal to the Company’s
Liquidation Value (defined below) in accordance with the applicable provisions
of the Companies Law (2007 Revision) of the Cayman Islands, as described in
the
Prospectus. With respect to the Business Combination Vote, the Company shall
cause all of the Initial Stockholders to vote the Ordinary Shares owned by
them
immediately prior to this Offering in accordance with the vote of the holders
of
a majority of the IPO Shares. The Company’s “Liquidation
Value”
shall
mean the Company’s book value (including all assets held in and outside of the
Trust Account), as determined by the Company and audited by UHY. In no event,
however, will the Company’s Liquidation Value be less than the value of the
Trust Account, inclusive of any net interest income thereon. Only holders of
IPO
Shares shall be entitled to receive liquidating distributions and the Company
shall pay no liquidating distributions with respect to any other shares of
capital stock of the Company.
8.7.2. Shareholder
Redemption Rights.
(i) At
the
time the Company seeks approval of any potential Business Combination, the
Company will offer each of the holders of Public Sub-Units in this Offering
(the
“IPO
Shares”)
the
right to cause the Company to redeem their IPO Shares for cash at a per share
price equal to such holders’ pro rata share of the amount in the Trust Account
(inclusive of any interest income therein and the Deferred Fees and any interest
thereon, and net of working capital and taxes payable) (the “Redemption
Price”)
on the
record date for determination of shareholders entitled to vote upon the proposal
to approve such Business Combination (the “Record
Date”).
Only
holders of IPO Shares shall be entitled to exercise redemption rights as set
forth herein.
(ii) If
holders of: (i) 50% or more in interest of the IPO Shares present at the
shareholders meeting approve the Business Combination and (ii) less than 30%
in
interest of the IPO Shares elect to exercise their redemption rights, the
Company may, but will not be required to, proceed with such Business
Combination. If the Company elects to so proceed, it will redeem the IPO Shares,
based upon the Redemption Price, from those holders of IPO Shares who
affirmatively requested such redemption and who voted against the Business
Combination. The Class B Warrants contained within the Public Sub-Units of
redeeming shareholders shall be forfeited and cancelled if the holder elects
to
cause the Company to redeem the Sub-Unit of which the Class B Warrant forms
a
part.
(iii) If
holders of: (i) 50% or more in interest of the IPO Shares present at the
shareholders meeting reject the Business Combination and (ii) 30% or more in
interest of the IPO Shares elect to exercise their redemption rights (subject
to
the purchases described in Section 3.3 herein), the Company will not proceed
with such Business Combination and will not redeem such IPO Shares.
8.8. Rule
419.
The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including, but not limited to, using its best efforts
to
prevent any of the Company’s outstanding securities from being deemed to be a
“▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under the Exchange Act during such
period.
8.9. Affiliated
Transactions.
The
Company shall cause each of the Initial Shareholders, until the earlier of
the
Company’s consummation of a Business Combination, its liquidation or until such
time as such Initial Shareholder ceases to be an officer or director of the
Company, to agree that, in order to minimize potential conflicts of interest
which may arise from multiple affiliations, the Initial Share holder will
present to the Company for its consideration, prior to presentation to any
other
person or company, any business opportunity which may reasonably be required
to
be presented to the Company under Cayman Islands law, taking into account any
pre-existing fudiciary obligations the Initial Shareholder might have or new
fudiciary obligations related to or affiliated with entities to whom the Initial
Shareholder has pre-existing fiduciary obligations, including, but not limited
to, fiduciary obligations to next generation, follow-on or successor entities
to
any entities to which the Initial Shareholder has pre-existing obligations.
China
Growth Alliance Ltd.
_______________,
2008
Page
29
of
33
8.10. Target
Net Assets.
The
Company agrees that the initial Target Business that it acquires must have
a
fair market value equal to at least 80% of the net assets held in the Trust
Account prior to the exercise of shareholder redemption rights at the time
of
the Business Combination: (a) net of: (i) taxes paid or reserved for and (ii)
interest which the Company may draw from the Trust Account as provided for
in
the Trust Agreement to pay for the Company’s working capital (including expenses
in seeking Business Combinations and, potentially, the costs of the Company’s
liquidation and dissolution) and (b) excluding the amount held in the Trust
Account representing the Deferred Fees. The fair market value of such business
must be determined by the Board of Directors of the Company based upon standards
generally accepted by the financial community, such as actual and potential
sales, earnings and cash flow and book value. If the Board of Directors of
the
Company is not able to independently determine that the Target Business has
a
fair market value of at least 80% of the Company’s fair market value at the time
of such acquisition, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm which is a member of FINRA with respect
to
the satisfaction of such criteria. The Company is not required to obtain an
opinion from an investment banking firm as to the fair market value if the
Company’s Board of Directors independently determines that the Target Business
does have sufficient fair market value.
9. Representations
and Agreements to Survive Delivery.
Except
as the context otherwise requires, all representations, warranties and
agreements contained in this Agreement shall be deemed to be representations,
warranties and agreements at the Closing Date and, if applicable, any Option
Closing Date, and such representations, warranties and agreements of the
Underwriters and Company, including the indemnity agreements contained in
Section 5 hereof, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter, the Company or
any
controlling person, and shall survive termination of this Agreement or the
issuance and delivery of the Securities to the several Underwriters until the
earlier of the expiration of any applicable statute of limitations and the
seventh anniversary of the later of the Closing Date or the Option Closing
Date,
if any, at which time the representations, warranties and agreements shall
terminate and be of no further force and effect.
10. Effective
Date of this Agreement and Termination Thereof.
10.1. Effective
Date.
This
Agreement shall become effective when both the Company and the Representative
have executed the same and delivered counterparts of such signatures to the
other party.
10.2. Termination.
You
shall have the right to terminate this Agreement at any time prior to any
Closing Date, (i) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, general securities markets in the United States;
or
(ii) if trading on the New York Stock Exchange, the American Stock
Exchange, the NASDAQ Global Market or the NASDAQ Capital Market shall have
been
suspended or materially limited, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required by FINRA or by order of the Commission or any other government
authority having jurisdiction, or (iii) if the United States shall have
become involved in a new war or an increase in major hostilities, or
(iv) if a banking moratorium has been declared by a New York State or
federal authority, or (v) if a moratorium on foreign exchange trading has
been declared which materially adversely impacts the United States securities
markets, or (vi) if the Company shall have sustained a material loss by
fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity
or malicious act which, whether or not such loss shall have been insured, will,
in your opinion, make it inadvisable to proceed with the delivery of the Firm
Units or Option Units, or (vii) if the Company is in material breach of any
of its representations, warranties or covenants hereunder, or (viii) if the
Representative shall have become aware after the date hereof of such a material
adverse change in the conditions or prospects of the Company, or such adverse
material change in general market conditions as in the Representative’s judgment
would make it impracticable to proceed with the offering, sale and/or delivery
of the Public Units or to enforce contracts made by the Underwriters for the
sale of the Public Units.
China
Growth Alliance Ltd.
_______________,
2008
Page 30
of
33
10.3. Expenses.
Except
in the case of a default by the Underwriters, pursuant to Section 6.2 above,
in
the event that this Agreement shall not be carried out for any reason
whatsoever, within the time specified herein or any extensions thereof pursuant
to the terms herein, the Company shall be obligated to pay to the Underwriters
their actual and accountable out of pocket expenses related to the transactions
contemplated herein then due and payable (including the fees and disbursements
of ▇▇▇▇▇▇▇ Savage up to $145,000).
10.4. Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election
hereunder or any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 5 shall not be
in
any way effected by, such election or termination or failure to carry out the
terms of this Agreement or any part hereof.
11. Miscellaneous.
11.1. Notices.
All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed (registered or certified mail, return
receipt requested), personally delivered or sent by facsimile transmission
and
confirmed and shall be deemed given when so delivered or faxed and confirmed
or
if mailed, two days after such mailing.
If
to the
Representative:
Jesup
& ▇▇▇▇▇▇ Securities Corporation
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Copy
to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
China
Growth Alliance Ltd.
_______________,
2008
Page 31
of
33
If
to the
Company:
China
Growth Alliance Ltd.
▇▇▇▇
▇▇▇,
4/F Aetna Tower
▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇
Fax
No.:
(▇▇) ▇▇-▇▇▇▇▇▇▇▇
Copy
to:
Ellenoff
▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax
No. : (▇▇▇) ▇▇▇-▇▇▇▇
11.2. Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Agreement.
11.3. Amendment.
This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
11.4. Entire
Agreement.
This
Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof, and supersedes all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
11.5. Binding
Effect.
This
Agreement shall inure solely to the benefit of and shall be binding upon the
Representative, the Underwriters, the Company and the controlling persons,
directors and officers referred to in Section 5 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have
or
be construed to have any legal or equitable right, remedy or claim under or
in
respect of or by virtue of this Agreement or any provisions herein contained.
The term “successors and assigns” shall not include a purchaser, in its capacity
as such, of securities from any of the Underwriters.
11.6. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of, or relating in any way to this Agreement shall be brought and enforced
in the courts of the State of New York of the United States of America for
the
Southern District, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The Company hereby waives any objection to
such
exclusive jurisdiction and that such courts represent an inconvenient forum.
Any
such process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
11 hereof. Such mailing shall be deemed personal service and shall be legal
and
binding upon the Company in any action, proceeding or claim. The Company agrees
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attorneys’ fees and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
China
Growth Alliance Ltd.
_______________,
2008
Page
32
of
33
11.7. Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto. Delivery of a signed counterpart of this Agreement by facsimile or
email/pdf transmission shall constitute valid and sufficient delivery
thereof.
11.8. Waiver,
etc.
The
failure of any of the parties hereto to at any time enforce any of the
provisions of this Agreement shall not be deemed or construed to be a waiver
of
any such provision, nor to in any way effect the validity of this Agreement
or
any provision hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Agreement
shall be effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver is sought;
and
no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
[Remainder
of page intentionally left blank.]
If
the
foregoing correctly sets forth the understanding between the Underwriters and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
|
Very
truly yours,
|
||||
|
CHINA
GROWTH ALLIANCE LTD.
|
||||
|
By:
|
||||
|
Name:
▇▇▇ ▇▇▇▇
|
||||
|
Title:
Chairman and Co-Chief Executive Officer
|
||||
|
Accepted
on the date first above written.
|
||||
|
JESUP
& ▇▇▇▇▇▇ SECURITIES CORPORATION
|
||||
|
By:
|
||||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
||||
|
Title:
Senior Managing Director
|
||||
SCHEDULE
1
CHINA
GROWTH ALLIANCE LTD.
7,000,000
Units
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Underwriter
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Number of Firm Units
to be Purchased |
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Jesup
& ▇▇▇▇▇▇ Securities Corporation
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▇▇▇▇▇
▇▇▇▇▇▇, Carret & Co.
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▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLC
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Pali
Capital, Inc.
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▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Incorporated
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7,000,000
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EXHIBIT
A
China
Growth Alliance Ltd.
▇▇▇▇
▇▇▇,
4/F Aetna Tower
▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇, Chairman and Co-Chief Executive Officer
Gentlemen:
Reference
is made to the Final Prospectus of China Growth Alliance Ltd. (“CGA”), dated
_________ 2008 (the “Prospectus”). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in Prospectus.
We
have
read the Prospectus and understand that CGA has established the Trust Account,
initially in an amount of $___________ for the benefit of the Public
Shareholders and that CGA may disburse monies from the Trust Account only
(i) to the Public Shareholders in the event of the redemption of their
shares or the liquidation of CGA or (ii) to CGA after it consummates a
Business Combination.
For
and
in consideration of CGA agreeing to evaluate the undersigned for purposes of
consummating a Business Combination with it, the undersigned hereby agrees
that
it does not have any right, title, interest or claim of any kind in or to any
monies in the Trust Account (the “Claim”) and hereby waives any Claim it may
have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with CGA and will not seek recourse against the Trust
Account for any reason whatsoever.
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Print
Name of Target Business
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Authorized
Signature of Target
Business
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EXHIBIT
B
China
Growth Alliance Ltd.
▇▇▇▇
▇▇▇,
4/F Aetna Tower
▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇, Chairman and Co-Chief Executive Officer
Gentlemen:
Reference
is made to the Final Prospectus of China Growth Alliance Ltd. (“CGA”), dated
__________, 2008 (the “Prospectus”). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in Prospectus.
We
have
read the Prospectus and understand that CGA has established the Trust Account,
initially in an amount of $ ___________ for the benefit of the Public
Shareholders and that CGA may disburse monies from the Trust Account only:
(i) to the Public Shareholders in the event of the redemption of their
shares or the liquidation of CGA; or (ii) to CGA after it consummates a
Business Combination.
For
and
in consideration of CGA engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Account (the “Claim”) and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any contracts or agreements with CGA and will not seek recourse against
the
Trust Account for any reason whatsoever.
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Print
Name of Vendor
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Authorized
Signature of Vendor
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