ADVANCED TECHNOLOGY ACQUISITION CORP. 18,750,000 Units UNDERWRITING AGREEMENT
18,750,000
Units
__________,
2007
CRT
Capital Group LLC
As
Representative of the several
Underwriters
listed on Schedule I hereto
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned, Advanced Technology Acquisition Corp., a Delaware corporation
(“Company”),
hereby confirms its agreement with CRT Capital Group LLC (being referred to
herein variously as “you,”
“CRT”
or
the
“Representative”)
and
with the other underwriters named in Schedule
I
hereto
for which you are acting as Representative (the Representative and the other
Underwriters being collectively referred to as the “Underwriters,”
or
individually, an “Underwriter”)
as
follows:
1. Purchase
and Sale of Securities.
1.1 Firm
Securities.
1.1.1 Purchase
of Firm Units.
On the
basis of the representations and warranties herein contained, but subject to
the
terms and conditions herein set forth, the Company agrees to issue and sell
to
the several Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree to purchase from the Company, an aggregate of
18,750,000 units (“Firm
Units”)
of the
Company, at a purchase price (net of all discounts and commissions other than
the Deferred Compensation (as defined in Section
1.1.3
hereof))
of (A) $7.74 per Firm Unit (the “Initial
Purchase Price”)
less
(B) the Deferred Compensation, if any. As adjusted for the payment, if any,
to
the Underwriter of the Deferred Compensation, the purchase price will be $7.44
per Firm Unit. The Underwriters, severally and not jointly, agree to purchase
from the Company the number of Firm Units set forth opposite their respective
names on Schedule
I
attached
hereto and made a part hereof at the Initial Purchase Price. The Firm Units
are
to be offered initially to the public (the “Offering”)
at the
offering price of $8.00 per Firm Unit. Each Firm Unit consists of one share
of
the Company’s common stock, par value $.0001 per share (the “Common
Stock”),
and
one warrant to purchase one share of Common Stock (“Warrant(s)”).
The
shares of Common Stock and the Warrants included in the Firm Units will be
separately transferable as promptly as practicable following the consummation
of
the Offering, but in no event later than 65 days following the consummation
of
the Offering; provided,
however,
that in
no event will separate trading begin before an audited balance sheet has been
prepared reflecting receipt by the Company of the proceeds of the Offering
and
filed with the Securities and Exchange Commission (the “Commission”)
under
cover of a Current Report on Form 8-K. Each Warrant entitles its holder to
exercise the Warrant to purchase one share of Common Stock for $6.00 during
the
period commencing on the later of the consummation by the Company of its
“Business Combination” or one year from the effective date (“Effective
Date”)
of the
Registration Statement (as defined in Section
2.1.1
hereof)
and terminating on the four-year anniversary of the Effective Date, unless
earlier redeemed as provided in the Warrant Agreement (as defined in
Section
2.10.2
hereof).
“Business
Combination”
shall
mean the acquisition by the Company, whether by merger, capital stock exchange,
asset acquisition, stock purchase or other similar business combination with
one
or more technology or technology-related operating businesses that has
operations or facilities located in Israel or that intends to establish
operations or facilities in Israel, such as research and development,
manufacturing or executive offices, following the initial business combination
(as described more fully in the Registration Statement).
1.1.2 Payment
and Delivery.
Delivery and payment for the Firm Units shall be made at 10:00 A.M., New York
time, on the third business day following the date of this Agreement (or the
fourth business day following the date of this Agreement, if this Agreement
is
executed after 4:30 p.m.) or at such earlier time as shall be agreed upon by
the
Representative and the Company at the offices of the Representative or at such
other place as shall be agreed upon by the Representative and the Company.
The
hour and date of delivery and payment for the Firm Units are called the
“Closing
Date.”
Payment for the Firm Units shall be made on the Closing Date at the
Representative’s election by wire transfer in immediately available Federal
funds of $145,125,000, representing the aggregate purchase price for the Firm
Units based on the Initial Purchase Price, payable as follows: $144,125,000
of
the proceeds received by the Company for the Firm Units shall be deposited
in
the trust account (“Trust
Account”)
established by the Company for the benefit of the public stockholders as
described in the Registration Statement ($5,625,000 of which is deposited in
respect of the Deferred Compensation (as defined below)) and $1,000,000, less
the amount owed by the Company to the Representative for all accountable
expenses owed thereto incident to the performance of the obligations of the
Company under this Agreement as set forth in Section
3.8
hereof,
to the extent such accountable expenses have not previously been paid, shall
be
paid to the order of the Company to a bank account established by the Company,
against 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 (“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 full business days prior to the Closing Date.
The Company will permit the Representative to examine and package the Firm
Units
for delivery, at least one full business day prior to the Closing Date. The
Company shall not be obligated to sell or deliver the Firm Units except upon
tender of payment by the Representative for all the Firm Units.
1.1.3 Deferred
Compensation.
Upon
the consummation of the Company’s initial Business Combination, the Company will
pay to the Underwriters the deferred compensation deposited by the Underwriters
into the Trust Account, including any deferred compensation deposited in respect
of Option Units (as defined below) (the “Deferred
Compensation”),
in an
amount equal to 3.75% of the gross proceeds (before giving effect to any
discounts or commissions) from the sale of the Units (as defined in Section
1.2.1
hereof),
or $0.30 per Unit, less $0.30 for each share of Common Stock of the Company
converted to cash by public stockholders in accordance with the procedures
described in the Registration Statement. Payment of the Deferred Compensation
will be made out of the proceeds of this Offering held in the Trust Account
at
the consummation of the Business Combination. If the Company fails to consummate
a Business Combination within the required time period set forth in the
Prospectus, the Deferred Compensation will not be paid to the Underwriters,
and
any proceeds held in the Trust Account that would have been paid to the
Underwriters in respect of the Deferred Compensation and any interest earned
thereon will, instead, be included in the distribution of the proceeds held
in
the Trust Account made to the holders of the IPO Shares upon the Company’s
dissolution.
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1.2 Over-Allotment
Option.
1.2.1 Option
Units.
For the
purposes of covering any over-allotments in connection with the distribution
and
sale of the Firm Units, the Underwriters are hereby granted, severally and
not
jointly, an option to purchase up to an additional 2,812,500 units
from the Company (“Over-allotment
Option”).
Such
additional 2,812,500 units are hereinafter referred to as “Option
Units.”
The
Firm Units and the Option Units are hereinafter collectively referred to as
the
“Units,”
and
the Units, the shares of Common Stock and the Warrants included in the Units
and
the shares of Common Stock issuable upon exercise of the Warrants are
hereinafter referred to collectively as the “Public
Securities.”
The
purchase price to be paid for the Option Units will be the same price per Option
Unit as the price per Firm Unit set forth in Section
1.1.1
hereof.
1.2.2 Exercise
of Option.
The
Over-allotment Option granted pursuant to Section
1.2.1
hereof
may be exercised by the 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,
unless sooner terminated pursuant to Section
1.2.4
hereof.
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 written notice to the Company
by the Representative, which notice may be delivered by email, electronic
facsimile transmission, postal mail or overnight courier, 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 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 the Representative or at such other place as shall be agreed
upon by the Company and the Representative. 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 shall be made on the Option Closing Date at the
Representative’s election by wire transfer in immediately available Federal
funds to the Trust Account, against delivery to you of certificates representing
such securities (or through the facilities of DTC for the account of the
Underwriters). The certificates representing the Option Units to be delivered
will be in such denominations and registered in such names as the Representative
requests not less than two full business days prior to the Closing Date or
the
Option Closing Date, as the case may be, and will be made available to the
Representative for inspection, checking and packaging at the aforesaid office
of
the Company’s transfer agent or correspondent not less than one full business
day prior to such Closing Date.
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1.2.4 Termination
of Option.
If the
Representative provides notice in writing to the Company that the Representative
is terminating the Over-Allotment Option prior to the lapse of the 45-day option
period, then the Over-Allotment Option shall immediately terminate and the
Company shall have no further obligation to convey to the Underwriters any
Option Units for which the Representative has not yet given notice of exercise.
Such notice may delivered by email or electronic facsimile transmission, and
shall be deemed effective when sent.
1.3 Underwriters’
Purchase Option.
1.3.1 Purchase
Option.
The
Company hereby agrees to issue and sell to the Underwriters (and/or their
designees) in such amounts as directed by the Representative on the Effective
Date, for an aggregate purchase price of $100, an option (or options)
(“Underwriters’
Purchase Option”)
for
the purchase of up to an aggregate of 1,125,000 units (“Underwriters’
Units”).
Each
of the Underwriters’ Units is identical to the Firm Units, except that the
warrants underlying the Underwriters’ Units will expire on the five-year
anniversary of the Effective Date. The Underwriters’ Purchase Option shall be
exercisable, in whole or in part, commencing on the later of (i) one year after
the Effective Date and (ii) the consummation of a Business Combination, and
expiring on the five-year anniversary of the Effective Date, at an initial
exercise price per Underwriters’ Unit of $8.80. The Underwriters’ Purchase
Option, the Underwriters’ Units, the warrants included in the Underwriters’
Units (“Underwriters’
Warrants”),
the
Common Stock included in the Underwriters’ Units and the shares of Common Stock
issuable upon exercise of the Underwriters’ Warrants are hereinafter referred to
collectively as the “Underwriters’
Securities.”
The
Public Securities and the Underwriters’ Securities are hereinafter referred to
collectively as the “Securities.”
1.3.2 180-day
Lock-Up.
The
Underwriters’ Securities have been deemed compensation by the National
Association of Securities Dealers, Inc. (“NASD”)
and
are therefore subject to a 180-day lock-up pursuant to Rule 2710(g)(1) of the
NASD Conduct Rules, pursuant to which the Underwriters’ Purchase Option may not
be sold, transferred, assigned, pledged or hypothecated for 180 days following
the Effective Date, except to the Underwriters participating in the Offering
and
their bona fide officers or partners.
1.3.3 Payment
and Delivery.
Delivery and payment for the Underwriters’ Purchase Option shall be made on the
Closing Date. The Company shall deliver to the Underwriters, upon payment
therefor, certificates for the Underwriters’ Purchase Option in the name or
names and in such authorized denominations as the Representaive may
request.
2. Representations
and Warranties of the Company.
The
Company represents and warrants to the Underwriters as follows:
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2.1 Filing
of Registration Statement.
2.1.1 Pursuant
to the Securities Act.
The
Company has prepared and filed with the Commission a registration statement
and
an amendment or amendments thereto on Form S-1 (File No. 333-137863), including
a related preliminary prospectus (any such preliminary prospectus in the form
first filed with the Commission, a “Preliminary
Prospectus”
and
the
Preliminary Prospectus dated __________, 2007 included in the registration
statement first filed with the Commission on __________, 2007, in the form
distributed to potential investors in the Offering, the “Statutory
Prospectus”),
for
registration under the Securities Act of 1933, as amended (the “Securities
Act”)
of the
offering and sale of the Securities, which registration statement and amendment
or amendments have been prepared by the Company in conformity with the
requirements of the Securities Act and the rules and regulations (“Rules”)
of the
Commission under the Securities Act. Except as the context may otherwise
require, such registration statement, as amended, on file with the Commission
at
the time the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as
a
part thereof or incorporated therein and all information deemed to be a part
thereof as of such time pursuant to paragraph (b) of Rule 430A of the Rules),
is
hereinafter called the “Registration
Statement.”
Such
Registration Statement has become effective as of the Effective Date. The
Company will file with the Commission a final prospectus in accordance with
Rule
424(b); such final prospectus in the form first filed with the Commission is
hereinafter called the “Prospectus.”
As
filed, the Prospectus shall contain all information required by the Securities
Act and the Rules thereunder, and shall be in all substantive respects in the
form of the Preliminary Prospectus included in the Registration Statement
immediately prior to the Effective Date.
2.1.2 Pursuant
to the Exchange Act.
The
Company has filed with the Commission a Form 8-A (File Number ______) providing
for the registration under the Securities Exchange Act of 1934, as amended
(the
“Exchange
Act”)
of the
Securities. The registration of the Securities under the Exchange Act is
effective as of the date hereof.
2.2 No
Stop Orders, Etc.
Neither
the Commission nor, to the Company’s knowledge, any state regulatory authority
has issued any order or threatened to issue any order preventing or suspending
the effectiveness of the Registration Statement or the use of any Preliminary
Prospectus, the Prospectus or any part thereof, or has instituted or, to 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.
On the
Effective Date, the Registration Statement did, and when the Prospectus is
first
filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein) and on any date on which Option Units are purchased, if such date is
not
the Closing Date (an “Option
Closing Date”),
the
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act and the Rules; on the
Effective Date and at the Closing Date and each Option Closing Date, if any,
the
Registration Statement did not and will not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and each
Option Closing Date, if any, the Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not misleading. At the
time it was first filed with the Commission (the “Applicable
Time”),
the
Statutory Prospectus did, and on the Closing Date will, comply in all material
respects with the applicable requirements of the Securities Act and the Rules;
at the Applicable Time, the Statutory Prospectus did not, and at the Closing
Date will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading. The representation
and warranty made in this Section
2.3.1
does not
apply to statements made or statements omitted in reliance upon and in
conformity with written information furnished to the Company with respect to
the
Underwriter by the Underwriter expressly for use in the Registration Statement,
the Statutory Prospectus or the Prospectus, or any amendment thereof or
supplement thereto.
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2.3.2 Disclosure
of Agreements.
The
agreements and documents described in the Statutory Prospectus and the
Prospectus conform to the descriptions thereof contained therein and there
are
no agreements or other documents required to be described in the Statutory
Prospectus or the Prospectus or to be filed with the Commission as exhibits
to
the Registration Statement, that have not been so described or
filed.
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 formation of the Company, except
as disclosed in the Statutory Prospectus and the Prospectus.
2.3.4 Rules.
The
disclosures in the Statutory Prospectus and the Prospectus concerning the
effects of Federal, State and local regulation on the Company’s business as
currently contemplated are correct in all material respects and do not omit
to
state a material fact necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading.
2.4 Changes
After Dates in Registration Statement.
2.4.1 No
Material Adverse Change.
Since
the respective dates as of which information is given in the Statutory
Prospectus (i) there has been no material adverse change in the condition,
financial or otherwise, or business prospects of the Company, (ii) there have
been no material transactions entered into by the Company, other than as
contemplated pursuant to this Agreement, and (iii) no member of the Company’s
management has resigned from any position with the Company.
2.4.2 Recent
Securities Transactions, Etc.
Subsequent to the respective dates as of which information is given in the
Statutory Prospectus, and except as may otherwise be indicated or contemplated
therein, the Company has not (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money; or (ii) declared or
paid any dividend or made any other distribution on or in respect to its equity
securities.
6
2.5 Independent
Accountants.
Deloitte
▇▇▇▇▇▇▇▇▇ Almagor, whose report is filed with the Commission as part of the
Registration Statement, is an independent registered public accounting firm
as
required by the Securities Act and the Rules. Deloitte ▇▇▇▇▇▇▇▇▇ Almagor has
not, during the periods covered by the financial statements included in the
Statutory Prospectus and the Prospectus, provided to the Company any non-audit
services, as such term is used in Section 10A(g) of the Exchange
Act.
2.6 Financial
Statements.
The
financial statements, including the notes thereto and supporting schedules,
if
any, included in the Statutory Prospectus and the Prospectus, fairly present
the
financial position, the results of operations and the cash flows of the Company
at the dates and for the periods to which they apply; and such financial
statements have been prepared in conformity with United States generally
accepted accounting principles (“GAAP”),
consistently applied throughout the periods involved. The Statutory Prospectus
and the Prospectus disclose all material off-balance sheet transactions,
arrangements, obligations (including contingent obligations), and other
relationships of the Company with unconsolidated entities or other persons
that
may have a material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations, liquidity,
capital expenditures, capital resources, or significant components of revenues
or expenses.
2.7 Authorized
Capital; Options; Etc.
The
Company had at the date or dates indicated in the Statutory Prospectus and
the
Prospectus duly authorized, issued and outstanding capital stock as set forth
in
the Statutory Prospectus and the Prospectus. Based on the assumptions stated
in
the Statutory Prospectus and the Prospectus, the Company will have on the
Closing Date the adjusted stock capitalization set forth therein. The Company’s
authorized capital stock conforms to all statements relating thereto contained
in the Statutory Prospectus and the Prospectus. Except as set forth in, or
contemplated by, the Statutory Prospectus and the Prospectus, on the Effective
Date and on the Closing Date, there will be no options, warrants, or other
rights to purchase or otherwise acquire any authorized but unissued shares
of
Common Stock of the Company or any security convertible into shares of Common
Stock of the Company, or any contracts or commitments to issue or sell shares
of
Common Stock or any such options, warrants, rights or convertible
securities.
2.8 Valid
Issuance of Securities; Etc.
2.8.1 Initial
Stockholders Shares.
The
shares of Common Stock issued to the Initial Stockholders (as defined below)
on
and outstanding as of September 25, 2006, and any shares issued in any stock
dividend thereon, 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 shares of Common Stock 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 offers and sales of
the
outstanding Common Stock were at all relevant times either registered under
the
Securities Act and the applicable state securities or Blue Sky laws or were
exempt from such registration requirements.
2.8.2 Securities
Sold Pursuant to the Founder Warrant Subscription Agreement.
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(i) The
warrants sold pursuant to the Founder Warrant Subscription Agreement (the
“Founder
Warrants”)
were
duly executed, authenticated, issued and delivered, and constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their 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 equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(ii) The
shares of Common Stock issuable upon exercise of the Founder Warrants have
been
duly authorized and, when executed by the Company and countersigned and issued
and delivered against payment therefor pursuant to the Founder Warrants and
the
Warrant Agreement, will be validly issued, fully paid and non-assessable. The
holders of such Common Stock will not be subject to personal liability by reason
of being such holders; such Common Stock will not be subject to any preemptive
or other similar contractual rights granted by the Company; and all corporate
action required to be taken for the authorization, issuance and sale of such
Common Stock (other than such execution, countersignature and delivery at the
time of issuance) has been duly and validly taken.
2.8.3 The
Founder Warrants and the shares of Common Stock underlying the Founder Warrants
conform in all material respects to all statements with respect thereto
contained in the Statutory Prospectus and the Prospectus. The certificates
for
such securities are in due and proper form. The offers and sales of the Founder
Warrants were at all relevant times either registered under the Securities
Act
and the applicable state securities or Blue Sky laws or were exempt from such
registration requirements.
2.8.4 Securities
Sold Pursuant to this Agreement.
(i) The
shares of Common Stock included in the Units and the Underwriters’ Units have
been duly authorized and, when executed by the Company and countersigned, and
issued and delivered against payment therefor by the Underwriters pursuant
to
this Agreement or the Underwriters’ Purchase Option, as the case may be, will be
validly issued, fully paid and non-assessable.
(ii) The
Warrants included in the Units and the Underwriters’ Warrants, when executed,
authenticated, issued and delivered in the manner set forth in the Warrant
Agreement against payment therefor by the Underwriters pursuant to this
Agreement or the Underwriters’ Purchase Option, as the case may be, will be duly
executed, authenticated, issued and delivered, and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their 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 equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
8
(iii) The
shares of Common Stock issuable upon exercise of the Warrants included in the
Units and the Underwriters’ Warrants have been duly authorized and, when
executed by the Company and countersigned and issued and delivered against
payment therefor pursuant to the Warrants or the Underwriters’ Warrants, as the
case may be, and the Warrant Agreement, will be validly issued, fully paid
and
non-assessable. The holders of such Common Stock will not be subject to personal
liability by reason of being such holders; such Common Stock will not be subject
to any preemptive or other similar contractual rights granted by the Company;
and all corporate action required to be taken for the authorization, issuance
and sale of such Common Stock (other than such execution, countersignature
and
delivery at the time of issuance) will have been duly and validly
taken.
(iv) When
issued, the Underwriters’ Purchase Option will constitute a valid and binding
obligation of the Company to issue and sell, upon exercise thereof and payment
of the respective exercise price therefor, the number and type of securities
of
the Company called for thereby in accordance with the terms thereof, and such
Underwriters’ Purchase Option is enforceable against the Company in accordance
with its terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (iii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(v) The
Securities conform in all material respects to all statements with respect
thereto contained in the Statutory Prospectus and the Prospectus. The
certificates for the Securities are in due and proper form.
2.9 Registration
Rights of Third Parties.
Except
as set forth in the Statutory Prospectus and the Prospectus, no holders of
any
securities of the Company or any rights exercisable for or convertible or
exchangeable into securities of the Company have the right to require the
Company to register any such securities of the Company under the Securities
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.
2.10.1 Underwriting
Agreement.
This
Agreement has been
duly
and validly executed by the Company
and
constitutes the valid and binding agreement of the Company.
2.10.2 Warrant
Agreement.
The
Warrant Agreement with Continental Stock Transfer & Trust Company, as
warrant agent, substantially in the form filed as Exhibit 4.8 to the
Registration Statement (the “Warrant
Agreement”),
has
been duly and validly executed by the Company and
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to (i) the effect of any
applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium and other similar
laws relating to or
affecting creditors’ rights generally (including without limitation all laws
relating to fraudulent transfers), (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability
of any rights to indemnity and contribution by federal and state securities
laws
and principles of public policy and (iv) possible
judicial action giving effect to governmental actions or foreign laws affecting
creditors’ rights.
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2.10.3 Trust
Agreement.
The
Investment Management Trust Agreement with Continental Stock Transfer &
Trust Company, as trustee, substantially in the form filed as Exhibit 10.15
to
the Registration Statement (the “Trust
Agreement”),
has
been duly and validly executed by the Company and
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to (i) the effect of any applicable
bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium and
other
similar laws relating to or
affecting creditors’ rights generally (including without limitation all laws
relating to fraudulent transfers), (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability
of any rights to indemnity and contribution by federal and state securities
laws
and principles of public policy and (iv) possible
judicial action giving effect to governmental actions or foreign laws affecting
creditors’ rights.
2.10.4 Escrow
Agreement.
The
Stock Escrow Agreement with Continental Stock Transfer & Trust Company, as
escrow agent, substantially in the form filed as Exhibit 10.16 to the
Registration Statement (the “Escrow
Agreement”),
has
been duly and validly executed by the Company
and
constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to (i) the effect of any
applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium and other similar
laws relating to or
affecting creditors’ rights generally (including without limitation all laws
relating to fraudulent transfers), (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability
of any rights to indemnity and contribution by federal and state securities
laws
and principles of public policy and (iv) possible
judicial action giving effect to governmental actions or foreign laws affecting
creditors’ rights.
2.10.5 Insider
Letters.
Each of
those certain letter agreements, substantially in the forms filed as Exhibits
10.1 through 10.14 to the Registration Statement (“Insider
Letters”),
have
been duly and validly executed by the Company and constitute valid and binding
agreements of the Company, enforceable in accordance with its terms, subject
to
(i) the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally (including without limitation all
laws relating to fraudulent transfers), (ii) the effect of general
principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered
in
a proceeding in equity or at law), (iii) the limitations on the
enforceability of any rights to indemnity and contribution by federal and state
securities laws and principles of public policy and (iv) possible judicial
action giving effect to governmental actions or foreign laws affecting
creditors’ rights.
10
2.10.6 Underwriters’
Purchase Option.
The
Underwriters’ Purchase Option has
been
duly and validly executed by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms, subject
to
(i) the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally (including without limitation all
laws relating to fraudulent transfers), (ii) the effect of general principles
of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability of any rights
to
indemnity and contribution by federal and state securities laws and principles
of public policy and (iv) possible judicial action giving effect to governmental
actions or foreign laws affecting creditors’ rights.
2.10.7 Registration
Rights Agreement.
The
Registration Rights Agreement with the Initial Stockholders, substantially
in
the form filed as Exhibit 10.18 to the Registration Statement, has been duly
and
validly executed by the Company and constitutes the valid and binding agreement
of the Company, enforceable in accordance with its terms, subject to (i) the
effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally (including without limitation all
laws relating to fraudulent transfers), (ii) the effect of general principles
of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability of any rights
to
indemnity and contribution by federal and state securities laws and principles
of public policy and (iv) possible judicial action giving effect to governmental
actions or foreign laws affecting creditors’ rights.
2.10.8 Services
Agreement.
The
Services Agreement (as defined in Section
2.24
below)
with LMS ▇▇▇▇▇, substantially in the form filed as Exhibit 10.21 to the
Registration Statement, has been duly and validly executed by the Company
and
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to (i) the effect of any applicable
bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium and other similar
laws relating to or
affecting creditors’ rights generally (including without limitation all laws
relating to fraudulent transfers), (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a proceeding
in
equity or at law), (iii) the limitations on the enforceability
of any rights to indemnity and contribution by federal and state securities
laws
and principles of public policy and (iv) possible
judicial action giving effect to governmental actions or foreign laws affecting
creditors’ rights.
2.11 No
Conflicts, Etc.
The
execution, delivery, and performance by the Company of this Agreement, the
Warrant Agreement, the Underwriters’ Purchase Option, the Trust Agreement, the
Insider Letters, the Founder Warrant Subscription Agreement, the Services
Agreement, the Registration Rights Agreement and the Stock Escrow Agreement,
the
consummation by the Company of the transactions herein and therein contemplated
and the compliance by the Company with the terms hereof and thereof do not
and
will not, with or without the giving of notice or the lapse of time or both
(i)
result in a breach of, or conflict with any of the terms and provisions of,
or
constitute a default under, or result in the creation, modification, termination
or imposition of any lien, charge or encumbrance upon any property or assets
of
the Company pursuant to the terms of any agreement or instrument to which the
Company is a party except pursuant to the Trust Agreement; (ii) result in a
violation of the provisions of the Amended and Restated Certificate of
Incorporation or the Bylaws of the Company; or (iii) violate any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company
or
any of its properties or business.
11
2.12 No
Defaults; Violations.
No
material default exists in the due performance and observance of any term,
covenant or condition of any material license, contract, indenture, mortgage,
deed of trust, note, loan or credit agreement, or any other agreement or
instrument evidencing an obligation for borrowed money, or any other material
agreement or instrument to which the Company is a party or by which the Company
may be bound or to which any of the properties or assets of the Company is
subject. The Company is not in violation of any term or provision of its Amended
and Restated Certificate of Incorporation or Bylaws or in violation of any
material franchise, license, permit, applicable law, rule, regulation, judgment
or decree of any governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or
businesses.
2.13 Corporate
Power; Licenses; Ownership.
2.13.1 Conduct
of Business.
The
Company has all requisite corporate power and authority, and has all necessary
authorizations, approvals, orders, licenses, certificates and permits of and
from all governmental regulatory officials and bodies that it needs as of the
date hereof to conduct its business and to consummate a Business Combination
as
described in the Statutory Prospectus and the Prospectus. The disclosures in
the
Statutory Prospectus and the Prospectus concerning the effects of federal,
state
and local regulation on this offering and the Company’s business purpose as
currently contemplated are correct in all material respects and do not omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
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
Underwriters’ Purchase Option, the Trust Agreement, the Insider Letters, the
Founder Warrant Subscription Agreement, the Services Agreement, the Registration
Rights Agreement and the Stock Escrow Agreement, and as contemplated by the
Statutory Prospectus and the Prospectus, except with respect to applicable
federal and state securities laws.
2.13.3 Ownership.
Except
as set forth in the Statutory Prospectus and the Prospectus, the Company owns
or
has valid leasehold interests in all material properties and assets required
for
the operation of its business as now conducted, including those described in
the
Statutory Prospectus and the Prospectus as being owned by it.
12
2.14 D&O
Questionnaires.
To the
best of the Company’s knowledge, all information contained in the director and
officer questionnaires and NASD supplemental questionnaires (“Questionnaires”)
completed by each of the Company’s stockholders prior to the Offering
(“Initial
Stockholders”)
and
provided to the Representative as an exhibit to his Insider Letter (as defined
in Section
2.10.5)
is true
and correct and the Company has not become aware of any information which would
cause the information disclosed in the questionnaires completed by each Initial
Stockholder to become inaccurate and incorrect.
2.15 Litigation;
Governmental Proceedings.
There
is no action, suit, proceeding, inquiry, arbitration, investigation, litigation
or governmental proceeding pending or, to the Company’s knowledge, threatened
against, or involving the Company or, to the Company’s knowledge, any Initial
Stockholder, which has not been disclosed in the Statutory Prospectus and the
Prospectus, except for actions, suits, proceedings, inquiries, arbitrations,
investigations, litigation or government proceedings pending against any Initial
Stockholder that would not individually or in the aggregate have a material
adverse effect on such Initial Stockholder, the Company or the
Offering.
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 State of Delaware, and is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of
business requires such qualification, except where the failure to qualify would
not have a material adverse effect on the Company.
2.17 Transactions
Affecting Disclosure to NASD.
2.17.1 Finder’s
Fees.
Except
as described in the Statutory Prospectus and the Prospectus, there are no
claims, payments, arrangements, agreements or understandings relating to the
payment of a finder’s, consulting or origination fee by the Company or any
Initial Stockholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any Initial Stockholder that may affect the Underwriters’
compensation, as determined by the NASD.
2.17.2 Payments
Within Twelve Months.
The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) (i) to any person, as a finder’s fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or introducing
to
the Company persons who raised or provided capital to the Company, (ii) to
any
NASD member or (iii) to any person or entity that has any direct or indirect
affiliation or association with any NASD member, within the twelve months prior
to the Effective Date.
2.17.3 Use
of
Proceeds.
None of
the net proceeds of the Offering will be paid by the Company to any
participating NASD member or its affiliates, except as specifically authorized
herein and except as may be paid in connection with a Business Combination
as
contemplated by the Statutory Prospectus and the Prospectus.
2.17.4 Insiders’
NASD Affiliation.
Except
as set forth on Schedule
2.17.4,
no
officer, director or any beneficial owner of the Company’s unregistered
securities has any direct or indirect affiliation or association with any NASD
member.
13
2.18 Foreign
Corrupt Practices Act.
Neither
the Company nor any of the Initial Stockholders or any other person acting
on
behalf of the Company has, directly or indirectly, given or agreed to give
any
money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or
agent
of a customer or supplier, or official or employee of any governmental agency
or
instrumentality of any government (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or any political party or
candidate for office (domestic or foreign) or other person who was, is, or
may
be in a position to help or hinder the business of the Company (or assist it
in
connection with any actual or proposed transaction) that (i) might subject
the
Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, might have had a
material adverse effect on the assets, business or operations of the Company
as
reflected in any of the financial statements contained in the Prospectus or
(iii) if not continued in the future, might adversely affect the assets,
business, operations or prospects of the Company. The Company’s internal
accounting controls and procedures are sufficient to cause the Company to comply
with the Foreign Corrupt Practices Act of 1977, as amended.
2.19 Covenants
Not to Compete.
No
Initial Stockholder, employee, officer or director of the Company is subject
to
any non-competition agreement or non-solicitation agreement with any employer
or
prior employer which could materially affect his ability to be an Initial
Stockholder, employee, officer and/or director of the Company.
2.20 Investments.
The
Company is not and, after giving effect to the offering and sale of the
securities as contemplated hereunder and in the Statutory Prospectus and the
Prospectus, and the application of the net proceeds from such sale as described
in the Statutory Prospectus and the Prospectus, will not be an “investment
company” within the meaning of such term under the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder.
2.21 Subsidiaries.
The
Company does not own an interest in any corporation, partnership, limited
liability company, joint venture, trust or other business entity.
2.22 Related
Party Transactions.
There
are no business relationships or related party transactions involving the
Company or any other person required to be described in the Statutory Prospectus
and the Prospectus that have not been described as required.
2.23 Free
Writing Prospectus.
The
Company has not prepared or used any “free writing prospectus,” as such term is
defined under Rule 405.
2.24 Administrative
Services.
The
Company has entered into an agreement (the “Services
Agreement”)
with
LMS ▇▇▇▇▇, substantially in the form annexed as Exhibit 10.21 to the
Registration Statement, pursuant to which LMS ▇▇▇▇▇ will make available to
the
Company office space and administrative, technological and secretarial support
for the Company’s use for $10,000 per month.
2.25 No
Contemplation of a Business Combination.
Prior
to the date hereof, neither the Company, its officers and directors nor the
Initial Stockholders had, and as of the Closing, the Company and such officers
and directors and Initial Stockholders will not have had: (i) any specific
Business Combination under consideration or contemplation; or (ii) any
discussions with any target business regarding a possible Business
Combination.
14
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.
3.2 Federal
Securities Laws.
3.2.1 Compliance.
During
the time when a Prospectus (or in lieu thereof a notice pursuant to Rule 173(a))
is required to be delivered under the Securities Act, the Company will use
all
reasonable efforts to comply with all requirements imposed upon it by the
Securities Act, the Rules 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 of the Statutory Prospectus and the Prospectus.
If at
any time when a Prospectus (or in lieu thereof a notice pursuant to Rule 173(a))
relating to the Public Securities is required to be delivered under the
Securities 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
Statutory Prospectus or 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 Registration Statement or the
Prospectus to comply with the Securities 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
Securities Act.
3.2.2 Exchange
Act Registration.
Until
the earlier of five years from the Effective Date, the date that the Company
is
liquidated or the date that the Company is acquired by a third party, the
Company will use its best efforts to maintain the registration of the Units,
Common Stock and Warrants under the provisions of the Exchange Act. The Company
will not deregister the Units, Common Stock or Warrants under the Exchange
Act
without the prior written consent of the Representative.
3.3 Blue
Sky Filings.
The
Company will endeavor in good faith, in cooperation with the Representative,
at
or prior to the time the Registration Statement becomes effective, to qualify
the Public Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may reasonably designate, provided that
no
such qualification shall be required in any jurisdiction where, as a result
thereof, the Company would be subject to service of general process or to
taxation as a foreign corporation doing business in such jurisdiction. Until
the
earliest of (i) five years after the Effective Date, (ii) the date on which
the
Public Securities are listed or quoted, as the case may be, on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market (or
any successor to such entities) and (iii) the date of the liquidation of the
Company (the period from the Effective Date to such earliest date, the
“Blue
Sky Compliance Period”),
in
each jurisdiction where such qualification shall be effected, the Company will,
unless the Representative agrees that such action is not at the time necessary
or advisable, use all reasonable efforts to file and make such statements or
reports at such times as are or may be required by the laws of such
jurisdiction.
15
3.4 Delivery
to Underwriters of Prospectuses.
The
Company will deliver to each of the several Underwriter, without charge, from
time to time during the period when the Prospectus (or in lieu thereof a notice
pursuant to Rule 173(a)) is required to be delivered under the Securities Act
or
the Exchange Act, such number of copies of the Prospectus as the Underwriters
may reasonably request and, as soon as the Registration Statement or any
amendment or supplement thereto becomes effective, deliver to the Representative
one original executed Registration Statement, including exhibits, and all
post-effective amendments thereto and copies of all exhibits filed therewith
or
incorporated therein by reference and original executed consents of all
certified experts.
3.5 Effectiveness
and Events Requiring Notice to the Representative.
The
Company will use its best efforts to cause the Registration Statement to remain
effective until distribution of the Public Securities is complete 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 when the Company becomes aware
of such, (iii) of the issuance by any state securities commission of any
proceedings for the suspension of the qualification of the Public Securities
for
offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for that purpose when the Company becomes aware of such,
(iv)
of the mailing and delivery to the Commission for filing of any amendment or
supplement to the Registration Statement or Prospectus, (v) of the receipt
of
any comments or request for any additional information from the Commission,
and
(vi) of the happening of any event during the period described in Section
3.4
hereof
that, in the judgment of the Company, makes any statement of a material fact
made in the Statutory Prospectus, 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 during any such time, the Company will make every reasonable
effort to obtain promptly the lifting of such order.
3.6 Affiliated
Transactions.
3.6.1 Business
Combinations.
The
Company will not consummate a Business Combination with any entity which is
affiliated with any Initial Stockholder unless the Company obtains an opinion
from an independent investment banking firm that the Business Combination is
fair to the Company’s stockholders from a financial perspective.
3.6.2 Compensation.
Except
as disclosed in the Statutory Prospectus and the Prospectus, the Company shall
not pay any Initial Stockholder or any of their affiliates any fees or
compensation from the Company, for services rendered to the Company prior to,
or
in connection with, the consummation of a Business Combination; provided that
the Initial Stockholders and their affiliates shall be entitled to reimbursement
from the Company for their reasonable out-of-pocket expenses incurred in
connection with seeking and consummating a Business Combination.
16
3.7 Secondary
Market Trading Survey.
Until
such time as the Public Securities are listed or quoted, as the case may be,
on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq Global
Select Market, Nasdaq Global Market or Nasdaq Capital Market (collectively
referred to below as “Nasdaq”),
the
Company shall engage Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel to the Underwriter (“Mintz”)
to
deliver to the Underwriters on the Effective Date, and to update at the
beginning of each fiscal quarter, if requested by the Representative, a written
report detailing those states in which the Public Securities may be traded
in
non-issuer transactions under the Blue Sky laws of the fifty States
(“Secondary
Market Trading Survey”),
for a
one-time fee of $5,000 payable on the Closing Date.
3.8 Payment
of Expenses.
3.8.1 General
Expenses Related to the Offering.
The
Company hereby agrees to pay on each of the Closing Date and each 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 (exclusive of the fees and
expenses of counsel to the Underwriters), printing, filing and mailing
(including the payment of postage with respect to such mailing) of the
Registration Statement, any Preliminary Prospectus and the Prospectus and the
printing and mailing of this Agreement and related documents, including the
cost
of all copies thereof and any amendments thereof or supplements thereto supplied
to the Underwriters in quantities as may be required by the Underwriters, (ii)
the printing, engraving, issuance and delivery of the Units, the shares of
Common Stock and the Warrants included in the Units and the Underwriters’
Purchase Option, including any transfer or other taxes payable thereon, (iii)
the qualification of the Public Securities under state or foreign securities
or
Blue Sky laws, including the costs of preparing, printing and mailing the
“Preliminary Blue Sky Memorandum,” the “Final Blue Sky Memorandum” and all
amendments and supplements thereto, the preparation of the Secondary Market
Trading Survey (as defined above), and the reasonable fees and disbursements
of
▇▇▇▇▇ related thereto; provided
that the
Company shall not be required to reimburse the Representative or ▇▇▇▇▇ for
any
amounts under this clause (iii) in excess of $40,000, unless ▇▇▇▇▇ or the
Underwriter have advanced filing fees with respect to the qualification of
the
Securities under state or foreign securities or Blue Sky laws, in which event
the limitations on reimbursement under this clause (iii) shall not apply to
such
filing fees, (iv) filing fees, costs and expenses (excluding fees and
disbursements for the Representative’s counsel) incurred in registering the
Offering with the NASD and the Commission, (v) fees and disbursements of the
Transfer Agent, (vi) the Company’s expenses associated with “road show” meetings
arranged by the Underwriter (which, for the avoidance of doubt, shall not
include the expenses of the Underwriters’ personnel incurred in connection with
“road show” meetings), and (vii) all other costs and expenses customarily borne
by an issuer incident to the performance of its obligations hereunder which
are
not otherwise specifically provided for in this Section
3.8.
The
Representative may deduct from the net proceeds of the Offering payable to
the
Company on the Closing Date, or on each Option Closing Date, if any, the
expenses set forth in this Agreement to be paid by the Company to the
Representative and others to the extent such expenses have not previously been
paid.
17
3.9 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 Statutory Prospectus and the Prospectus.
3.10 Notice
to NASD.
In the
event any person or entity (excluding attorneys, accountants, engineers,
environmental or labor consultants, investigatory firms, technology consultants
and specialists and similar service providers that are not affiliated or
associated with the NASD and are not brokers or finders) is engaged, in writing,
to assist the issuer in finding or evaluating a Target Business, the Company
will provide the following to the NASD and the Representative prior to
consummation of the Business Combination: (i) copies of agreements governing
said services; and (ii) a justification as to why the person or entity providing
the merger and acquisition services should not be considered an “underwriter or
related person” with respect to the Company’s initial public offering as such
term is defined in Rule 2710(a)(6) of the NASD Conduct Rules. The Company also
agrees that proper disclosure of such arrangement or potential arrangement
will
be made in the proxy statement which the Company will file for purposes of
soliciting stockholder approval for the Business Combination.
3.11 Stabilization.
Neither
the Company, nor, to its knowledge, any of its employees, directors or
stockholders (without the consent of the Underwriter) has taken or will take,
directly or indirectly, any action designed to or that has constituted or that
might reasonably be expected to cause or result in, under the Exchange Act,
or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Units.
3.12 Internal
Controls.
During
the Blue Sky Compliance Period, the Company will maintain a system of internal
accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management’s general or specific
authorization, (ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with generally accepted
accounting principles and to maintain accountability for assets, (iii) access
to
assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared
with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
3.13 Form
8-K.
The
Company shall, on the date hereof, retain its independent public accountants
to
audit the financial statements of the Company as of the Closing Date
(“Audited
Financial Statements”)
reflecting the receipt by the Company of the proceeds of the initial public
offering. As soon as the Audited Financial Statements become available, the
Company shall immediately file a Current Report on Form 8-K with the Commission,
which Report shall contain the Company’s Audited Financial
Statements.
3.14 NASD.
During
the period of the distribution of the Public Securities, the Company shall
advise the NASD if it is aware that any 5% or greater stockholder of the Company
becomes an affiliate or associated person of an NASD member participating in
the
distribution of the Company’s Public Securities.
18
3.15 Investment
Company.
The
Company shall cause the proceeds of the Offering to be held in the Trust Account
to be invested only in money market funds or “government securities” as set
forth in the Trust Agreement and disclosed in the Statutory Prospectus and
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.
3.16 Colorado
Trust Filing.
In the
event the Securities are registered in the State of Colorado, the Company will
cause a Colorado Form ES to be filed with the Commissioner of the State of
Colorado no less than 10 days prior to the distribution of the Trust Account
in
connection with a Business Combination and will do all things necessary to
comply with Section ▇▇-▇▇-▇▇▇ and Rule 51-3.4 of the Colorado Securities
Act.
3.17 Private
Placement Proceeds.
Pursuant to the Founder Warrant Subscription Agreement, the purchasers of the
Founder Warrants shall place the purchase price for the Founder Warrants (an
aggregate of $2,500,000) in escrow prior to the consummation of the Offering.
Simultaneously with the consummation of the Offering, such purchase price shall
be deposited into the Trust Fund pursuant to the Trust Agreement.
4. Conditions
of Underwriter’s Obligations.
The
obligations of the Underwriters to purchase and pay for the Firm Units on the
Closing Date and the Option Units, if any, on any Option Closing Date, are
subject to the condition that the representations and warranties of the Company
as of the date hereof and as of the Closing Date or Option Closing Date, as
the
case may be, are true and accurate in all material respects, and to the
condition that the Company has performed all of its covenants and obligations
hereunder theretofore to be performed, and to the following additional
conditions:
4.1 Regulatory
Matters.
4.1.1 Effectiveness
of Registration Statement.
The
Registration Statement shall have become effective not later than 5:00 P.M.,
New
York time, on the date of this Agreement or such later date and time as shall
be
consented to in writing by you, and, at each of the Closing Date and the Option
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for the purpose shall have
been instituted or shall be pending or contemplated by the Commission and any
request on the part of the Commission for additional information shall have
been
complied with to the reasonable satisfaction of ▇▇▇▇▇.
4.1.2 NASD
Clearance.
The
NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting or other arrangements of the transactions
contemplated hereby.
4.1.3 No
Blue Sky Stop Orders.
No
order suspending the sale of the Units in any jurisdiction designated by you
pursuant to Section
3.3
hereof
shall have been issued on either on the Closing Date or the Option Closing
Date,
and no proceedings for that purpose shall have been instituted or shall be
contemplated.
19
4.2 Company
Counsel Matters.
4.2.1 Closing
Date Opinion of Counsel.
On the
Closing Date and on each Option Closing Date, if any, the Representative shall
have received the favorable opinion of Proskauer Rose LLP (“Proskauer”),
counsel to the Company, dated as of the Closing Date or the Option Closing
Date,
as the case may be, addressed to the Representative and in form and substance
reasonably satisfactory to ▇▇▇▇▇ to the following effect:
(i) The
Company has been duly organized and is validly existing as a corporation and
is
in good standing under the laws of the State of Delaware. The Company is duly
qualified and licensed and in good standing as a foreign corporation in each
jurisdiction listed on Schedule
A
to such
counsel’s opinion.
(ii) Based
upon such counsel’s review of the Company’s minute book and in reliance on an
officer’s certificate as to receipt of consideration, all issued and outstanding
shares of Common Stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; the holders thereof are not
subject to personal liability by reason of being such holders; and none of
such
securities were issued in violation of the preemptive rights of any stockholder
of the Company arising by operation of law or under the Amended and Restated
Certificate of Incorporation or Bylaws of the Company.
(iii) When
issued, the Founder Warrants will constitute valid and binding obligations
of
the Company to issue and sell, upon exercise thereof and payment therefor,
the
number and type of securities of the Company called for thereby and such
Warrants, when issued, are enforceable against the Company in accordance with
their terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or 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 equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(iv) The
shares of Common Stock issuable upon exercise of the Warrants included in the
Founder Warrants have been duly authorized and, when executed by the Company
and
countersigned and issued and delivered against payment therefor pursuant to
the
Founder Warrants and the Warrant Agreement, will be validly issued, fully paid
and non-assessable. The holders of such Common Stock will not be subject to
personal liability by reason of being such holders; such Common Stock will
not
be subject to any preemptive or other similar contractual rights granted by
the
Company; and all corporate action required to be taken for the authorization,
issuance and sale of such Common Stock (other than such execution,
countersignature and delivery at the time of issuance) has been duly and validly
taken.
(v) The
authorized and to such counsel’s knowledge, outstanding capital stock of the
Company is as set forth in the Statutory Prospectus and the Prospectus; the
offers and sales of the outstanding Common Stock and the Founder Warrants were
at all relevant times either registered under the Securities Act or exempt
from
such registration requirements.
20
(vi) The
shares of Common Stock included in the Units and the Underwriters’ Units have
been duly authorized and, when executed by the Company and countersigned, and
issued and delivered against payment therefor by the Underwriters pursuant
to
this Agreement or the Underwriters’ Purchase Option, as the case may be, will be
validly issued, fully paid and non-assessable.
(vii) The
Warrants included in the Units and the Underwriters’ Warrants, when executed,
authenticated, issued and delivered in the manner set forth in the Warrant
Agreement against payment therefor by the Underwriters pursuant to this
Agreement or the Underwriters’ Purchase Option, as the case may be, will be duly
executed, authenticated, issued and delivered, and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except (i) as such enforceability may be limited
by
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or 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 equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(viii) The
shares of Common Stock issuable upon exercise of the Warrants included in the
Units and the Underwriters’ Warrants have been duly authorized and, when
executed by the Company and countersigned and issued and delivered against
payment therefor pursuant to the Warrants or the Underwriters’ Warrants, as the
case may be, and the Warrant Agreement, will be validly issued, fully paid
and
non-assessable. The holders of such Common Stock will not be subject to personal
liability by reason of being such holders; such Common Stock will not be subject
to any preemptive or other similar contractual rights granted by the Company;
and all corporate action required to be taken for the authorization, issuance
and sale of such Common Stock (other than such execution, countersignature
and
delivery at the time of issuance) will have been duly and validly
taken.
(ix) When
issued, the Underwriters’ Purchase Option will constitute a valid and binding
obligation of the Company to issue and sell, upon exercise thereof and payment
of the respective exercise price therefor, the number and type of securities
of
the Company called for thereby in accordance with the terms thereof, and such
Underwriters’ Purchase Option is enforceable against the Company in accordance
with its respective terms, except (i) as such enforceability may be limited
by
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or 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 equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(x) The
Securities conform in all material respects to all statements with respect
thereto contained in the Statutory Prospectus and the Prospectus. The
certificates representing the Common Stock are in due and proper
form.
21
(xi) This
Agreement,
the
Warrant Agreement, the Underwriters’ Purchase Option, the Trust Agreement, the
Insider Letters, the Founder Warrant Subscription Agreement, the Services
Agreement, the Registration Rights Agreement and the Stock Escrow Agreement
have
each 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,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium and
other
similar laws relating to or 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
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(xii) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
the Underwriters’ Purchase Option, the Trust Agreement, the Insider Letters, the
Founder Warrant Subscription Agreement, the Services Agreement, the Registration
Rights Agreement and the Stock Escrow Agreement, the issuance and sale of the
Securities, the consummation of the transactions contemplated hereby and
thereby, and compliance by the Company with the terms and provisions hereof
and
thereof, do not and will not, with or without the giving of notice or the lapse
of time, or both, (a) to such counsel’s knowledge, conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a default under,
or
result in the creation or modification of any lien, security interest, charge
or
encumbrance upon any of the properties or assets of the Company pursuant to
the
terms of, any mortgage, deed of trust, note, indenture, loan, contract,
commitment or other agreement or instrument filed as an exhibit to the
Registration Statement, (b) result in any violation of the provisions of the
Amended and Restated Certificate of Incorporation or the Bylaws of the Company,
or (c) to such counsel’s knowledge, violate any applicable United States federal
law, the Delaware General Corporation Law or any New York State law, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company that, in such counsel’s experience, is normally
applicable to general business corporations in relation to transactions of
the
type contemplated by the Underwriting Agreement.
(xiii) The
Registration Statement, the Statutory Prospectus and the Prospectus (other
than
the financial statements included therein, as to which no opinion need be
rendered) each as of their respective dates appeared on their face to comply
as
to form in all material respects with the requirements of the Securities Act
and
the Rules. Each agreement filed as an exhibit to the Registration Statement
conforms in all material respects to the description thereof contained in the
Statutory Prospectus and the Prospectus. The descriptions in the Registration
Statement and in the Prospectus, insofar as such statements constitute a summary
of United States statutes, legal matters, contracts, documents or proceedings
referred to therein, fairly present in all material respects the information
required to be shown with respect to such United States statutes, legal matters,
contracts, documents and proceedings, and such counsel does not know of any
United States statutes or legal or governmental proceedings required to be
described in the Prospectus that are not described in the Registration Statement
or the Prospectus or included as exhibits to the Registration Statement that
are
not described or included as required.
22
(xiv) To
such
counsel’s knowledge, the Registration Statement is effective under the
Securities 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
Securities Act or applicable state securities laws.
(xv) To
such
counsel’s knowledge, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or
threatened against the Company that is required to be described in the Statutory
Prospectus or the Prospectus.
The
opinion of counsel shall further include a statement to the effect that such
counsel has participated in conferences with certain officers and other
representatives of the Company, representatives of the Company’s independent
registered public accounting firm, representatives of the Underwriters and
representatives of the Underwriters’ counsel, at which conferences the contents
of the Registration Statement, the Statutory Prospectus and the Prospectus
were
discussed and, although such counsel is not passing upon and does not assume
any
responsibility for, and has not independently checked or verified, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Statutory Prospectus and the Prospectus contained therein, on
the
basis of the foregoing, nothing has come to such counsel’s attention that would
lead it to believe that (A) the Registration Statement or any amendment thereto,
at the time the Registration Statement or amendment became effective, or (B)
the
Statutory Prospectus, at the Applicable Time, or (C) 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 opinion with respect to (i) any disclosures relating
to
the laws, rules, statutes or regulations of Israel or (ii) the financial
statements and related notes and schedules thereto and other financial and
statistical data and information included in the Registration Statement, the
Statutory Prospectus or the Prospectus).
4.2.2 Reliance.
In
rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates or other written statements of officers
of the Company and officers of departments of various jurisdictions having
custody of documents respecting the corporate existence or good standing of
the
Company, provided that copies of any such statements or certificates shall
be
delivered to ▇▇▇▇▇ if requested.
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 from Deloitte ▇▇▇▇▇▇▇▇▇ Almagor dated, respectively,
as of the date of this Agreement and as of the Closing Date and the Option
Closing Date, if any:
(i) Confirming
that they are independent accountants with respect to the Company within the
meaning of the Securities Act and the applicable Rules 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;
23
(ii) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement, the Statutory Prospectus and the Prospectus comply
as to
form in all material respects with the applicable accounting requirements of
the
Securities Act and the published Rules thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the stockholders
and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible
for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe that (a)
the unaudited financial statements of the Company included in the Registration
Statement, do not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules or are not fairly
presented in conformity with generally accepted accounting principles applied
on
a basis substantially consistent with that of the audited financial statements
of the Company included in the Registration Statement, (b) at a date not later
than five days prior to the Effective Date, Closing Date or Option Closing
Date,
as the case may be, there was any change in the capital stock or long-term
debt
of the Company, or any decrease in the stockholders’ equity of the Company as
compared with amounts shown in the December 31, 2006 balance sheet included
in
the Statutory Prospectus and the Prospectus, other than as set forth in or
contemplated by the Statutory Prospectus and the Prospectus, or, if there was
any decrease, setting forth the amount of such decrease, and (c) during the
period from December 31, 2006 to a specified date not later than five days
prior
to the Effective Date, Closing Date or Option Closing Date, as the case may
be,
there was any decrease in revenues, net earnings or net earnings per share
of
Common Stock, other than as set forth in or contemplated by the Statutory
Prospectus and the Prospectus, 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;
(v) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Registration Statement, the Statutory Prospectus
and the Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the general
accounting records, including work sheets, of the Company and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
24
(vi) Stating
that they have not brought to the attention of the Company’s management any
reportable condition related to internal structure, design or operation as
defined in the Statement on Auditing Standards No. 60 “Communication of Internal
Control Structure Related Matters Noted in an Audit,” in the Company’s internal
controls; and
(vii) Statements
as to such other matters incident to the transaction contemplated hereby as
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 President and the Secretary or Assistant Secretary of the Company,
dated the Closing Date or the Option Closing Date, as the case may be,
respectively, to the effect that the Company has performed all covenants and
complied with all conditions required by this Agreement to be performed or
complied with by the Company prior to and as of the Closing Date, or the Option
Closing Date, as the case may be, and that the conditions set forth in
Section
4.5
hereof
have been satisfied as of such date and that, as of Closing Date and the Option
Closing Date, as the case may be, the representations and warranties of the
Company set forth in Section
2
hereof
are true and correct. In addition, the Representative will have received such
other and further certificates of officers of the Company as the Representative
may reasonably request.
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 Bylaws and Amended
and
Restated Certificate of Incorporation of the Company are true and complete,
have
not been modified and are in full force and effect, (ii) that the resolutions
relating to the public offering contemplated by this Agreement are in full
force
and effect and have not been modified, (iii) all correspondence between the
Company or its counsel and the Commission, and (iv) as to the incumbency of
the
officers of the Company. The documents referred to in such certificate shall
be
attached to such certificate.
4.5 No
Material Changes.
Prior
to and on each of the Closing Date and the Option Closing Date, if any, (i)
there shall have been no material adverse change or development that is likely
to result in a 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 Statutory Prospectus or
the
Prospectus, (ii) no action, suit or proceeding, at law or in equity, shall
have
been pending or threatened against the Company or any Initial Stockholder before
or by any court or federal or state commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may materially
adversely affect the business, operations, prospects or financial condition
or
income of the Company, except as set forth in the Statutory Prospectus and
Prospectus, (iii) no stop order shall have been issued under the Securities
Act
and no proceedings therefor shall have been initiated or threatened by the
Commission, and (iv) the Statutory Prospectus, 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 Securities Act and the Rules and shall conform in all material respects
to
the requirements of the Securities Act and the Rules, and neither the Statutory
Prospectus 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.
25
4.5.1 Closing
Date Delivery of UPO.
On the
Closing Date, the Company shall have delivered to the Underwriters the
Underwriters’ Purchase Option.
4.6 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 ▇▇▇▇▇ a favorable
opinion, dated the Closing Date and each 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 4.6,
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, and each dealer selected by you that
participates in the offer and sale of the Securities (each a “Selected
Dealer”)
and
each of their respective directors, officers and employees and each person,
if
any, who controls any such Underwriter (“controlling
person”)
or any
such Selected Dealer within the meaning of Section 15 of the Securities 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 Securities 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 (a) any Statutory
Prospectus, the Registration Statement or the Prospectus (as from time to time
each may be amended and supplemented); (b) in any post effective amendment
or
amendments or any new registration statement and prospectus in which securities
of the Company issued or issuable upon exercise of the Representative’s Purchase
Option are included; or (c) 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 Securities under the
securities laws thereof or filed with the Commission, any state securities
commission or agency, the NASD, OTC Bulletin Board, Nasdaq or any securities
exchange; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading,
unless such statement or omission was made in reliance upon and in conformity
with written information furnished to the Company with respect to the
Underwriter by or on behalf of the Underwriter expressly for use in the
Statutory Prospectus, the Registration Statement or Prospectus, or any amendment
or supplement thereof, or in any application, as the case may be, which
furnished written information, it is expressly agreed, consists solely of the
name of the Underwriter and the information with respect to dealers’ concessions
and reallowances contained in the section of the Prospectus entitled
“Underwriting,” and the identity of counsel to such Underwriters contained in
the section of the Prospectus entitled “Legal Matters.” 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, any Statutory Prospectus or the
Prospectus.
26
5.1.2 Procedure.
If any
action is brought against an Underwriter, a Selected Dealer or a controlling
person in respect of which indemnity may be sought against the Company pursuant
to Section
5.1.1,
such
Underwriter or Selected Dealer 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 or Selected Dealer, as the case may be) and payment
of actual expenses; provided,
that
the failure to give such notice shall not relieve the Company from any liability
it may have to an Underwriter, a Selected Dealer or controlling person in
respect of its indemnification obligations hereunder, except to the extent
the
Company has been materially prejudiced (through forfeiture of substantive rights
or defenses) by such failure; and provided further,
that
the failure to notify the Company shall not relieve the Company, in any event,
from any liability that it may have to an Underwriter, a Selected Dealer or
controlling person otherwise than in respect of its indemnification obligations
hereunder. Such Underwriter, Selected Dealer 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, Selected
Dealer or 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, or (ii) the Company shall not have
employed counsel to take 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, Selected
Dealer and/or controlling person shall be borne by the Company. Notwithstanding
anything to the contrary contained herein, if the Underwriter, Selected Dealer
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.
27
5.2 Indemnification
of the Company.
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, officers and employees and agents who control the
Company within the meaning of Section 15 of the Securities Act or Section 20
of
the Exchange Act against any and all loss, liability, claim, damage and expense
described in the foregoing indemnity from the Company to the Underwriter, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions made in the Statutory Prospectus, the
Registration Statement or Prospectus or any amendment or supplement thereto
or
in any application, in reliance upon, and in strict conformity with, written
information furnished to the Company with respect to the several Underwriters
by
or on behalf of the Underwriter expressly for use in such Statutory Prospectus,
the Registration Statement or Prospectus or any amendment or supplement thereto
or in any such application, which furnished written information, it is expressly
agreed, consists solely of the name of such Underwriter and the information
with
respect to dealers’ concessions and reallowances contained in the section of the
Prospectus entitled “Underwriting,” and the identity of counsel to the
Underwriters contained in the section of the Prospectus entitled “Legal
Matters.” In case any action shall be brought against the Company or any other
person so indemnified based on any Statutory Prospectus, the Registration
Statement or Prospectus or any amendment or supplement thereto or any
application, and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the
rights and duties given to several Underwriters by the provisions of
Section
5.1.2.
5.3 Contribution.
5.3.1 Contribution
Rights.
In
order to provide for just and equitable contribution under the Securities 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 Securities
Act,
the Exchange Act or otherwise may be required on the part of any such person
in
circumstances for which indemnification is provided under this Section
5,
then,
and in each such case, the Company and the Underwriters shall contribute to
the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the initial
offering price appearing thereon and the Company is responsible for the balance;
provided,
however,
that no
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section
5.3.1,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Public Securities underwritten by it
and
distributed to the public were offered to the public exceeds the amount of
any
damages that such Underwriter has otherwise been required to pay in respect
of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section
5
each
director, officer and employee of the 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 Securities Act shall have
the same rights to contribution as the Underwriters or the Company, as
applicable.
28
5.3.2 Contribution
Procedure.
Within
fifteen days after receipt by any party to this Agreement (or its
representative) of notice of the commencement of any action, suit or proceeding,
such party will, if a claim for contribution in respect thereof is to be made
against another party (“contributing
party”),
notify the contributing party of the commencement thereof, but the omission
to
so notify the contributing party will not relieve it from any liability which
it
may have to any other party other than for contribution hereunder. In case
any
such action, suit or proceeding is brought against any party, and such party
notifies a contributing party or its representative of the commencement thereof
within the aforesaid fifteen days, the contributing party will be entitled
to
participate therein with the notifying party and any other contributing party
similarly notified. Any such contributing party shall not be liable to any
party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such party seeking
contribution without the written consent of such contributing party. The
contribution provisions contained in this Section
5
are
intended to supersede, to the extent permitted by law, any right to contribution
under the Securities Act, the Exchange Act or otherwise available. The
Underwriters’ obligations to contribute pursuant to this Section
5.3
are
several and not joint.
6. Additional
Covenants.
6.1 Additional
Shares or Options.
The
Company hereby agrees that until the earlier of the consummation of a Business
Combination or the distribution of the Trust Account described in Section
6.4
hereof,
it shall not issue any shares of Common Stock or any options or other securities
convertible into Common Stock, or any shares of Preferred Stock which
participate in any manner in the Trust Account or which vote as a class with
the
Common Stock on a Business Combination.
6.2 Trust
Account Waiver Acknowledgment.
The
Company hereby agrees that prior to commencing its due diligence investigation
of any operating business which the Company seeks to acquire for its initial
Business Combination (“Target
Business”)
or
obtaining the services of any vendor, it will use its best efforts to cause
the
Target Business or vendor to execute a waiver letter substantially in the form
attached hereto as Exhibit A. Notwithstanding the foregoing, in the event any
Target Business, vendor or other third party refuses to execute such a letter,
the Company may nonetheless commence its due diligence investigations of such
Target Business or obtain the services of any such vendor or third party if
and
only if the Company’s board of directors determines in good faith after due
inquiry that the Company would be unable to obtain, on a reasonable basis,
substantially similar services or opportunities from another entity willing
to
execute such a waiver.
6.3 Blue
Sky Requirements.
In
connection with a Business Combination, concurrently with such filing with
the
Commission, the Company shall furnish any state in which the Offering was
registered, such information as may be requested by such state.
6.4 Acquisition/Distribution
Procedure.
The
Company agrees: (i) that, prior to the consummation of the initial Business
Combination, it will submit such transaction to the Company’s stockholders for
their approval (“Business
Combination Vote”)
even
if the nature of the acquisition is such as would not ordinarily require
stockholder approval under applicable state law; and (ii) that, in the event
that the Company does not effect a Business Combination within 18 months from
the consummation of this Offering (subject to extension for an additional
six-month period, as described in the Prospectus), the Company will be dissolved
as promptly as practicable, and, subject to creditors claims, payment of taxes
and the dissolution provisions of the Delaware General Corporation Law, the
assets will be liquidated and distributed only to the holders of IPO Shares
(as
defined below) in an aggregate sum equal to the Trust Liquidation Value. The
“Trust
Liquidation Value”
shall
mean the amount then on deposit in the Trust Account, inclusive of (i) the
proceeds held in trust from this Offering and the sale of the Founder Warrants,
(ii) the 3.75% of the proceeds held in the Trust Account representing the
Deferred Compensation, and (iii) any interest, net of taxes payable on such
interest, not released to the Company to fund its working capital requirements,
including any interest earned on the portion of the proceeds held in the Trust
Account representing the Deferred Compensation. Only holders of IPO Shares
shall
be entitled to receive liquidating distributions in dissolution and the Company
shall pay no such distributions with respect to any other shares of capital
stock of the Company. With respect to the initial Business Combination Vote,
the
Company shall cause all of the Initial Stockholders to vote the shares of Common
Stock owned by them immediately prior to this Offering in accordance with the
vote of the holders of a majority of the IPO Shares present, in person or by
proxy at a meeting of the Company’s stockholders called for such purpose. At the
time the Company seeks approval of the initial Business Combination, the Company
will offer each holder of the Company’s Common Stock issued in this Offering
(the “IPO
Shares”)
the
right to convert their IPO Shares at a per share conversion price (the
“Conversion
Price”)
equal
to (A) the amount in the Trust Account as of two business days prior to the
Business Combination Vote, excluding the portion of the proceeds attributable
to
the Deferred Compensation (but not excluding interest earned on such portion),
divided
by
(B) the
total number of IPO Shares. If holders of less than 40% in interest of the
Company’s IPO Shares vote against such approval of a Business Combination and
elect to convert their IPO Shares, the Company may, but will not be required
to,
proceed with such Business Combination. If the Company elects to so proceed,
it
will convert shares, based upon the Conversion Price, from those holders of
IPO
Shares who affirmatively requested such conversion and who voted against the
Business Combination. Only holders of IPO Shares shall be entitled to receive
the Conversion Price and the Company shall pay no other shares of capital stock
of the Company the Conversion Price. If holders of 40% or more in interest
of
the IPO Shares vote against approval of any potential Business Combination
and
elect to convert their IPO Shares, the Company will not proceed with such
Business Combination and will not convert such shares.
29
6.5 Rule
419.
The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Securities Act prior to the consummation
of any Business Combination.
6.6 Target
Net Assets.
The
Company agrees that the initial Target Business(es) in a Business Combination
must have a fair market value equal to at least 80% of the Company’s net assets,
defined as total assets minus total liabilities (excluding the Deferred
Compensation), at the time of such Business Combination. The fair market value
of such business(es) 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(es) has a fair market value of at least 80% of the Company’s net
assets (excluding the Deferred Compensation) at the time of such Business
Combination, the Company will obtain an opinion from an unaffiliated,
independent investment banking firm with respect to the satisfaction of such
criteria. The Company is not required to obtain an opinion from an investment
banking firm as to the fair market value of the Target Business(es) if the
Company’s Board of Directors independently determines that the Target
Business(es) has a sufficient fair market value.
30
7. Representations
and Agreements to Survive Delivery.
Except
as the context otherwise requires, all representations, warranties, covenants
and agreements contained in this Agreement shall be deemed to be
representations, warranties, covenants and agreements at the Closing Dates
and
such representations, warranties, covenants 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.
8. Termination
of this Agreement.
8.1 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, Nasdaq
or
on the NASD OTC Bulletin Board (or successor trading market) shall have been
suspended, or minimum or maximum prices for trading shall have been fixed,
or
maximum ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities shall have been required on the NASD OTC
Bulletin Board or by order of the Commission or any other government authority
having jurisdiction, or (iii) if the United States shall have become involved
in
a new war or an increase in major hostilities, or (iv) if a banking moratorium
has been declared by a New York State or federal authority, or (v) if a
moratorium on foreign exchange trading has been declared which materially
adversely impacts the United States securities markets, or (vi) if the Company
shall have sustained a material loss by fire, explosion, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which,
whether or not such loss shall have been insured, will, in your opinion, make
it
inadvisable to proceed with the delivery of the Units, or (vii) if any of the
Company’s representations, warranties, covenants or agreements hereunder are
materially breached, or (viii) if the Representative shall have become aware
after the date hereof of such a material adverse change in the conditions or
prospects of the Company, or such adverse material change in general market
conditions, including without limitation as a result of terrorist activities
after the date hereof, as in the Representative’s judgment would make it
impracticable to proceed with the offering, sale and/or delivery of the Units
or
to enforce contracts made by the Underwriters for the sale of the
Securities.
8.2 Expenses.
In the
event that this Agreement shall not be carried out for any reason whatsoever,
within the time specified herein or any extensions thereof pursuant to the
terms
herein, the obligations of the Company to pay the actually incurred out of
pocket expenses related to the transactions contemplated herein shall be
governed by Section
3.8.1
hereof.
31
8.3 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 affected by, such election or termination or failure to carry
out the terms of this Agreement or any part hereof.
9. Miscellaneous.
9.1 Notices.
All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be mailed, delivered or telecopied and confirmed
and shall be deemed given when so delivered or telecopied and confirmed or
if
mailed, two days after such mailing:
If
to the
Representative:
CRT
Capital Group LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Investment Banking
Copy
to:
Mintz,
Levin, Cohn, Ferris,
Glovsky
and Popeo, P.C.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
If
to the
Company:
14
A
Achimeir Street
Ramat
Gan
52587
Israel
Attn:
Chief Executive Officer
Copy
to:
Proskauer
Rose LLP
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
9.2 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.
32
9.3 Amendment.
This
Agreement may only be amended by a written instrument executed by each of the
parties hereto.
9.4 Entire
Agreement.
This
Agreement (together with the other agreements and documents being delivered
pursuant to or in connection with this Agreement) constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof, and supersede all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
9.5 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.
9.6 Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. The
Company hereby agrees that any action, proceeding or claim against it arising
out of, relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New
York
or in the United States District Court for the Southern District of New York,
and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting
a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in this Section
9.
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.
9.7 No
Fiduciary Duty.
The
Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters, on the other, (ii) in connection
therewith the Underwriters are acting solely as a principal and not as the
agent
or fiduciary of the Company, (iii) the Underwriters have not assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the Offering
(irrespective of whether the Underwriters have advised or is currently advising
the Company on other matters) or any other obligation to the Company except
the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe a fiduciary
or
similar duty to the Company in connection with the Offering.
9.8 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.
33
9.9 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 affect 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.
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,
ADVANCED
TECHNOLOGY
ACQUISITION
CORP.
By:___________________________________
Name:
Title:
Accepted
on the date first
above
written
CRT
CAPITAL GROUP LLC
Acting
severally on behalf of itself
and
the several Underwriters named
on
Schedule I hereto
By:___________________________________
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Title: Managing
Director
34
SCHEDULE
I
|
18,750,000
Units
|
||
|
Underwriter
|
Number
of Firm Units to be Purchased
|
|
|
CRT
Capital Group LLC
|
||
|
I-Bankers
Securities, Inc.
|
||
SCHEDULE
2.17.4
[
List
all Company directors, officers and beneficial owners
of
Company stock that have NASD affiliations ]
EXHIBIT
A
FORM
OF TRUST CLAIM WAIVER LETTER
[Letterhead
of prospective vendor or target business.]
14
A
Achimeir Street
Ramat
Gan
52587
Israel
Ladies
and Gentlemen:
Reference
is made to the Prospectus of Advanced Technology Acquisition Corp. (the
“Company”),
dated
__________, 2007 (the “Prospectus”).
We
acknowledge that we have read the Prospectus and understand that the Company
has
established a trust account for the benefit of the Company’s public stockholders
at ▇▇▇▇▇▇ Brothers Inc., maintained by Continental Stock Transfer & Trust
Company acting as trustee (the “Trust
Account”)
and
that the Company may disburse monies from the Trust Account only:
(a) in
the
event the Company consummates a “business combination” (as such term is used in
the Prospectus), to any public stockholders who exercise their conversion
rights, to the Underwriters in respect of their deferred underwriting discount
and to the Company in the amount remaining in the Trust Account following such
payments to the public stockholders and the Underwriters; or
(b) in
the
event of the Company’s dissolution and liquidation, to the public
stockholders.
For
and
in consideration of the Company [agreeing
to evaluate us for purposes of consummating an initial business
combination][engaging
our services],
we
hereby agree that we do not have any right, title, interest or claim of any
kind
in or to any monies in the Trust Account (“Claim”)
and
hereby waive any Claim we may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with the Company and will not
seek
recourse against the Trust Account for any reason whatsoever.
Yours
very truly,
[NAME]
By:_____________________________________
Name:
Title: